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Full text of "North Carolina Register v.7 no. 14 (10/15/1992)"

J?SR/ j/^/'^M/.AZ./A^ / 



The 
NORTH CAROLINA 

REGISTER 



IN THIS ISSUE 




EXECUTIVE ORDERS 

PROPOSED RULES 

Chiropractic Examiners 

Environment, Health, and Natural Resources 

Human Resources 

Insurance 

Justice 

Medical Examiners, Board of 

Pharmacy, Board of 

State Personnel 

RRC OBJECTIONS 

RULES INVALIDATED BY JUDICIAL DECISION 

RECEIVED 



CONTESTED CASE DECISIONS 
ISSUE DATE: October 15, 1992 



OCT 20 1992 

LAW LIBRARY 
Volume 7 • Issue 14 • Pages 1351-1463 



INFORMATION ABOUT THF NORTH CAROLINA REGISTER AND ADMINISTRATIVE CODE 



NORTH CAROLINA REGISTER 



TEMPORARY RULES 



The North Carolina Register is published twice a month and 
contains information relating to agency, executive, legislative and 
judicial actions required by or affecting Chapter 150B of the 
General Statutes. All proposed administrative rules and notices of 
public hearings filed under G.S. 150B-21.2 must be published in 
the Register. The Register will typically comprise approximately 
fifty pages per issue of legal text. 

State law requires that a copy of each issue be provided free of 
charge to each county in the state and to various state officials and 
institutions. 

The North Carolina Register is available by yearly subscription 
at a cost of one hundred and five dollars (S105.00) for 24 issues. 
Individual issues may be purchased for eight dollars (S8.00). 

Requests for subscription to the North Carolina Register should 
be directed to the Office of Administrative Hearings, 
P. 0. Drawer 27447, Raleigh. N. C. 2761 1-7447. 



Under certain emergency conditions, agencies may issue 
temporary rules. Within 24 hours of submission to OAH, the 
Codifier of Rules must review the agency's written statement of 
findings of need for the temporary rule pursuant to the provisions in 
G.S. 150B-21.1. If the Codifier determines that the findings meet 
the criteria in G.S. 150B-21.1, the rule is entered into the NCAC. If 
the Codifier determines that the findings do not meet the criteria, 
the rule is returned to the agency. The agency may supplement its 
findings and resubmit the temporary rule for an additional review 
or the agency may respond that it will remain with its initial 
position. The Codifier, thereafter, will enter the rule into the 
NCAC. A temporary rule becomes effective either when the 
Codifier of Rules enters the rule in the Code or on the sixth 
business day after the agency resubmits the rule without change. 
The temporary rule is in effect for the period specified in the rule or 
180 days, whichever is less. An agency adopting a temporary rule 
must begin rule-making procedures on the permanent rule at the 
same time the temporary rule is filed with the Codifier. 



ADOPTION AMENDMENT, AND REPEAL OF 
RULES 



NORTH CAROLINA ADMINISTRATIVE CODE 



The following is a generalized statement of the procedures to be 
followed for an agency to adopt, amend, or repeal a rule. For the 
specific statutory authority, please consult Article 2A of Chapter 
150B of the General Statutes. 

Any agency intending to adopt, amend, or repeal a rule must 
first publish notice of the proposed action in the North Carolina 
Register. The notice must include the time and place of the public 
hearing (or instructions on how a member of the public may request 
a hearing); a statement of procedure for public comments: the text 
of the proposed rule or the statement of subject matter; the reason 
for the proposed action; a reference to the statutory authority for the 
action and the proposed effective date. 

Unless a specific statute provides otherwise, at least 15 days 
must elapse following publication of the notice in the North 
Carolina Register before the agency may conduct the public 
hearing and at least 30 days must elapse before the agency can take 
action on the proposed rule. An agency may not adopt a rule that 
differs substantially from the proposed form published as part of 
the public notice, until the adopted version has been published in 
the North Carolina Register for an additional 30 day comment 
period. 

When final action is taken, the promulgating agency must file 
the rule with the Rules Review Commission (RRC). After approval 
by RRC, the adopted rule is filed with the Office of Administrative 
Hearings (OAH). 

A rule or amended rule generally becomes effective 5 business 
days after the rule is filed with the Office of Administrative 
Hearings for publication in the North Carolina Administrative Code 
(NCAC). 

Proposed action on rules may be withdrawn by the promulgating 
agency at any time before final action is taken by the agency or 
before filing with OAH for publication in the NCAC. 



The North Carolina Administrative Code (NCAC) is a 
compilation and index of the administrative rules of 25 state 
agencies and 38 occupational licensing boards. The NCAC 
comprises approximately 15,000 letter size, single spaced pages of 
material of which approximately 35% of is changed annually. 
Compilation and publication of the NCAC is mandated bv G.S. 
150B-21.18. 

The Code is divided into Titles and Chapters. Each state agency 
is assigned a separate title which is further broken down by 
chapters. Title 21 is designated for occupational licensing boards. 

The NCAC is available in two formats. 

(1) Single pages may be obtained at a minimum cost of 
two dollars and 50 cents (S2.50) for 10 pages or less, 
plus fifteen cents (SO. 15) per each additional page. 

(2) The full publication consists of 53 volumes, totaling in 
excess of 15,000 pages. It is supplemented monthly 
with replacement pages. A one year subscription to the 
full publication including supplements can be 
purchased for seven hundred and fifty dollars 
(S750.00). Individual volumes may also be purchased 
with supplement service. Renewal subscriptions for 
supplements to the initial publication are available. 

Requests for pages of rules or volumes of the NCAC should be 
directed to the Office of Administrative Hearings. 



CITATION TO THE NORTH CAROLINA 
REGISTER 

The North Carolina Register is cited by volume, issue, page 
number and date. 1:1 NCR 101-201, April 1, 1986 refers to 
Volume 1, Issue 1, pages 101 through 201 of the North Carolina 
Register issued on April 1, 1986. 



FOR INFORMATION 


CONTACT 


Office 


of 


Administrative Hearings, 


ATTN: Ru 


es 


Division, 


P.O. 


Drawer 27447, Raleigh, North Carolina 


27611-7447, 


(919) 


733-2678. 











NORTH 
CAROLINA 
REGISTER 




Office of Administrative Hearings 

P. O. Drawer 27447 

Raleigh, North Carolina 27611-7447 

(919) 733-2678 



Julian Mann III. 

Director 
James R. Scarcella Sr., 

Deputy Director 
Molly Masich, 

Director of APA Services 



Staff: 

Ruby Creech, 

Publications Coordinator 
Teresa Kilpatrick, 

Editorial Assistant 
Jean Shirley. 

Editorial Assistant 



ISSUE CONTENTS 



I. EXECUTIVE ORDERS 

Executive Orders 176-177 



1351 



II. PROPOSED RULES 

Environment, Health, and 
Natural Resources 

Wildlife Resources Commission . 1414 

Human Resources 

Facility Services 1352 

Medical Assistance 1391 

Insurance 

Actuarial Services 1411 

Agent Services 1410 

Departmental Rules 1405 

Fire and Rescue Services 1406 

Justice 

N.C. Alarm Systems 1414 

SBI 1413 

Licensing Boards 

Chiropractic Examiners 1416 

Medical Examiners 1417 

Pharmacy, Board of 1418 

State Personnel 
Office of State Personnel 1419 

III. RRC OBJECTIONS 1423 

IV. RULES INVALIDATED BY 
JUDICIAL DECISION 1427 

V. CONTESTED CASE DECISIONS 

Index to ALI Decisions 1428 

Text of Selected Decisions 

91 OSP0315 1441 

91 EHR 0402 1445 

91 EHR 0909 1455 

92 OSP 1421 1448 

VI. CUMULATIVE INDEX 1461 



NORTH CAROLINA REGISTER 

Publication Schedule 
(August 1992 - December 1993) 



Issue 
Date 



Last Day 
for Filing 



Last Day Earliest 

for Elec- Date for 

tronic Public 

Filing Hearing 



Earliest 

Date for Last Day *Earliest 

Adoption to Submit Effective 

by Agency to RRC Date 



08/03/92 
08/14/92 
09/01/92 
09/15/92 
10/01/92 
10/15/92 
11/02/92 
11/16/92 
12/01/92 
12/15/92 
01/04/93 
01/15/93 
02/01/93 
02/15/93 
03/01/93 
03/15/93 
04/01/93 
04/15/93 
05/03/93 
05/14/93 
06/01/93 
06/15/93 
07/01/93 
07/15/93 
08/02/93 
08/16/93 
09/01/93 
09/15/93 
10/01/93 
10/15/93 
11/01/93 
11/15/93 
12/01/93 
12/15/93 



07/13/92 
07/24/92 
08/11/92 
08/25/92 
09/10/92 
09/24/92 
10/12/92 
10/23/92 
11/06/92 
11/24/92 
12/09/92 
12/22/92 
01/08/93 
01/25/93 
02/08/93 
02/22/93 
03/11/93 
03/24/93 
04/12/93 
04/23/93 
05/10/93 
05/24/93 
06/10/93 
06/23/93 
07/12/93 
07/26/93 
08/11/93 
08/24/93 
09/10/93 
09/24/93 
10/11/93 
10/22/93 
11/05/93 
11/24/93 



07/20/92 
07/31/92 
08/18/92 
09/01/92 
09/17/92 
10/01/92 
10/19/92 
10/30/92 
11/13/92 
12/01/92 
12 16 92 
12/31/92 
01/15/93 
02/01/93 
02/15/93 
03/01/93 
03/18/93 
03/31/93 
04/19/93 
04/30/93 
05/17/93 
06/01/93 
06/17/93 
06/30/93 
07/19/93 
08/02/93 
08/18/93 
08/31/93 
09/17/93 
10/01/93 
10/18/93 
10/29/93 
11/15/93 
12/01/93 



08/18/92 
08/29/92 
09/16/92 
09/30/92 
10/16/92 
10/30/92 
11/17/92 
12/01/92 
12/16/92 
12/30/92 
01/19/93 
01/30/93 
02/16/93 
03/02/93 
03/16/93 
03/30/93 
04/16/93 
04/30/93 
05/18/93 
05/29/93 
06/16/93 
06/30/93 
07/16/93 
07/30/93 
08/17/93 
08/31/93 
09/16/93 
09/30/93 
10/16/93 
10/30/93 
11/16/93 
11/30/93 
12/16/93 
12/30/93 



09/02/92 
09/13/92 
10 01 92 
10/15/92 
10/31/92 
11/14/92 
12/02/92 
12/16/92 
12/31/92 
01/14/93 
02/03/93 
02/14/93 
03/03/93 
03/17/93 
03/31/93 
04/14/93 
05/01/93 
05/15/93 
06/02/93 
06/13/93 
07/01/93 
07/15/93 
07/31/93 
08/14/93 
09/01/93 
09/15/93 
10/01/93 
10/15/93 
10/31/93 
11/14/93 
12/01/93 
12/15/93 
12/31/93 
01/14/94 



09/20/92 
09/20/92 
10/20/92 
10/20/92 
11/20/92 
1 1 /20/92 
12/20/92 
12/20/92 
01/20/93 
01/20/93 
02/20/93 
02/20/93 
03/20/93 
03/20/93 
04/20/93 
04/20/93 
05/20/93 
05/20/93 
06/20/93 
06/20/93 
07/20/93 
07/20/93 
08/20/93 
08/20/93 
09/20/93 
09/20/93 
10/20/93 
10/20/93 
11/20/93 
11/20/93 
12/20/93 
12/20/93 
01/20/94 
01/20/94 



11/02/92 
11/02/92 
12/01/92 
12/01/92 
01/04/93 
01/04/93 
02/01/93 
02/01/93 
03/01/93 
03/01/93 
04/01/93 
04/01/93 
05/03/93 
05/03/93 
06/01/93 
06/01/93 
07/01/93 
07/01/93 
08/02/93 
08/02/93 
09/01/93 
09/01/03 
10/01/93 
10/01/93 
11/01/93 
11/01/93 
12/01/93 
12/01/93 
01/04/94 
01/04/94 
02/01/94 
02/01/94 
03/01/94 
03/01/94 



* Tlie "Earliest Effective Date" is computed assuming that the agency follows the publication 
schedule above, that the Rules Review Commission approves the rule at the next calendar 
month meeting after submission, and that RRC delivers the rule to the Codifier of Rules five 
(5) business day's before the 1st business day of the next calendar month. 



EXECUTIVE ORDERS 



EXECUTIVE ORDER NUMBER 176 

AMENDMENT AND EXTENSION OF 

EXECUTIVE ORDER 148 

By the authority vested in me as Governor 
by the Constitution and laws of North Carolina. IT 
IS ORDERED: 

Section 1. Extension 

Executive Order Number 148 is reissued 
and extended for a period of two years, unless 
terminated earlier or extended by further Executive 
Order. 



cane Andrew and license requirements thereon. 

THEREFORE, pursuant to authority 
granted to the Governor by Article III, Sec. 5(3) 
of the Constitution, it is ordered: 

Executive Order Number 175 is hereby 
extended, retroactive September 28, 1992, without 
amendment and shall remain in effect until October 
28. 1992. 

Done in the Capital City of Raleigh, North 
Carolina, this 1st day of October, 1992. 



Section 2. Additional Objective 

The Task Force on Health Objectives For 
The Year 2000 ("Task Force") shall provide 
encouragement and guidance to communities 
establishing their own local groups to accomplish 
the objectives developed by the Task Force. 

Section 3. Governor's Community Task 
Forces 

The Task Force shall have the power to 
designate Governor's Community Task Forces on 
Health Objectives for the Year 2000 ("Community 
Task Forces"). These Community Task Forces 
shall be comprised of representatives of public and 
private organizations which support the goals of 
the Task Force. The Community Task Forces 
shall seek to further the objectives of the Task 
Force and they shall exist so long as the Task 
Force does, unless earlier terminated. 

Section 4. Effective Date 

This Executive Order shall be effective 
immediately. 

Done in Raleigh. North Carolina, this the 
24th day of September, 1992. 

EXECUTIVE ORDER NUMBER 177 
EXTENDING THE PROVISIONS OF 
EXECUTIVE ORDER NUMBER 175 

Reference is made to Executive Order 
Number 175 dated August 28. 1992. 

It has been determined that additional 
Hurricane Andrew relief efforts necessitate an 
extension of the temporary waiver of weight 
restrictions on the gross weight of trucks transport- 
ing food, supplies and equipment through North 
Carolina to the areas of disaster caused by Hurri- 



7:14 NORTH CAROLINA REGISTER October 15, 1992 



1351 



PROPOSED RULES 



TITLE 10 - DEPARTMENT OF HUMAN 
RESOURCES 

l\ otice is hereby given in accordance with G.S. 
150B-21.2 that the Medical Care Commission 
(Division of Facility Services) intends to amend 
rules cited as 10 NCAC 3C . 1902. . 1927 - . 1929; 
3H .0108, .0711. .1108 - .1109. 

1 he proposed effective date of this action is 
February 1. 1993. 

I he public hearing will be conducted at 9:30 
a.m. on December 4. 1992 at the Council Build- 
ing, Room 201. 701 Barbour Drive. Raleigh, NC 
27603. 

Keason for Proposed Actions: To make the 
existing brain injury rules less restrictive and 
thereby provide more beds for patients with brain 
injuries. 

(comment Procedures: Written comments should 
be submitted to Jackie Sheppard, 701 Barbour 
Drive. Raleigh. North Carolina 27603. by Novem- 
ber 16. 1992. 

CHAPTER 3 - FACILITY SERVICES 

SUBCHAPTER 3C - LICENSLNG OF 
HOSPITALS 

SECTION .1900 - SUPPLEMENTAL RULES 

FOR THE LICENSURE OF THE SKILLED: 

INTERMEDIATE: DOMICILIARY BEDS IN 

A HOSPITAL 

.1902 DEFINITIONS 

The following definitions shall apply throughout 
this Section, unless text otherwise clearly indicates 
to the contrary: 

( 1 I "Accident" means something occurring 
by chance or without intention which has 
caused physical or mental harm to a 
patient, resident or employee. 

1 2 ) "Administer" means the direct application 
of a drug to the body of a patient by 
injection, inhalation, ingestion or other 
means. 

(3) "Administrator" means the person who 
has authority for and is responsible to the 



governing board for the overall operation 
of a facility. 

(4) "Brain injury extended long term care" is 
defined as a multi discipline an interdisci- 
plinary, intensive maintenance program 
for patients who have incurred brain 
damage caused by eternal physical trau- 
ma and who have completed a primary 
course of rehabilitative treatment and 
have reached a point of no gain or prog- 
ress for more than three consecutive 
months. Services are provided through a 
medically supervised interdisciplinary 
process and are directed toward maintain- 
ing the individual at the optimal level of 
physical, cognitive and behavioral func- 
tioning. 

(5) "Capacity" means the maximum number 
of patient or resident beds which the 
facility is licensed to maintain at any 
given time. This number shall be deter- 
mined as follows: 

(a) Bedrooms shall have minimum square 
footage of 100 square feet for a single 
bedroom and 80 square feet per patient 
or resident in multi-bedded rooms. 
This minimum square footage shall not 
include space in toilet rooms, wash- 
rooms, closets, vestibules, corridors, 
and built-in furniture. 

(b) Dining, recreation and common use 
areas available shall total no less than 
25 square feet per bed for skilled nurs- 
ing and intermediate care beds and no 
less than 30 square feet per bed for 
domiciliary home beds. Such space 
must be contiguous to patient and resi- 
dent bedrooms. 

(6) "Combination Facility" means any hospi- 
tal with nursing home beds which is 
licensed to provide more than one level 
of care such as a combination of interme- 
diate care and/or skilled nursing care and 
domiciliary home care. 

(7) "Convalescent Care" means care given 
for the purpose of assisting the patient or 
resident to regain health or strength. 

(8) "Department" means the North Carolina 
Department of Human Resources. 

(9) "Director of Nursing" means the nurse 
who has authority and direct responsibili- 
ty for all nursing services and nursing 
care. 

(10) "Dispense" means preparing and packag- 
ing a prescription drug or device in a 



1352 



7:14 NORTH CAROLINA REGISTER October 15, 1992 



PROPOSED RULES 



> 



(11) 
(a) 



(b) 



(O 



(d) 



(12) 
(13) 



(14) 



(15) 



(16) 



(17) 



container and labeling the container with 
information required by state and federal (18) 

law. Filling or refilling drug containers 
with prescription drugs for subsequent (19) 

use by a patient is "dispensing". Provid- 
ing quantities of unit dose prescription 
drugs for subsequent administration is 
"dispensing". 
"Drug" means substances: 

recognized in the official United States 

Pharmacopoeia, official National For- 
mulary, or any supplement to any of 

them; 

intended for use in the diagnosis, cure, 

mitigation, treatment, or prevention of (20) 

disease in man or other animals; 

intended to affect the structure or any 

function of the body of man or other 

animals, i.e., substances other than 

food; and 

intended for use as a component of any 

article specified in (a), (b), or (c) of 

this Subparagraph; but does not include 

devices or their components, parts, or 

accessories. 
"Duly Licensed" means holding a current 
and valid license as required under the 
General Statues of North Carolina. 
"Existing Facility" means a licensed (21) 

facility; or a proposed facility, proposed 
addition to a licensed facility or proposed 
remodeled licensed facility that will be 
built according to plans and specifications 
which have been approved by the depart- 
ment through the preliminary working 
drawings stage prior to the effective date 
of this Rule. 

"Exit Conference" means the conference 
held at the end of a survey, inspection or 
investigation, but prior to finalizing the (22) 

same, between the department's represen- 
tatives who conducted the survey, inspec- 
tion or investigation and the facility 
administration representative(s). 
"Incident" means an intentional or unin- 
tentional action, occurrence or happening 
which is likely to cause or lead to physi- 
cal or mental harm to a patient, resident 
or employee. 

"Licensed Practical Nurse" means a 
nurse who is duly licensed as a practical (23) 

nurse under G.S. 90, Article 9A. 
"Licensee" means the person, firm, 
partnership, association, corporation or 
organization to whom a license has been 



issued. 

"Medication" means drug as defined in 
(12) of this Rule. 

"New Facility" means a proposed facili- 
ty, a proposed addition to an existing 
facility or a proposed remodeled portion 
of an existing facility that is constructed 
according to plans and specifications 
approved by the department subsequent 
to the effective date of this Rule. If 
determined by the department that more 
than one half of an existing facility is 
remodeled, the entire existing facility 
shall be considered a new facility. 
"Nurse Aide" means any unlicensed male 
or female per s on regardle ss of working 
title employed or a s signed in a facility 
for the puipo s e of assisting duly licensed 
nurses — wrth — patient care or providing 
pat i ent — eafe — under the — supervision or 
direction of duly licen s ed nur s e s individ- 
ual providing nursing or nursing-related 
services to patients in a facility, and is 
not a licensed health professional, a 
qualified dietitian or someone who volun- 
teers to provide such services without 
pay, and who js listed in a nurse aide 
registry approved by the Department . 
"Nurse Aide Trainee" means an individu- 
al in training to become a nur s e aide who 
has not completed an approved nurse aide 
training course and competency evalua- 
tion and is demonstrating knowledge, 
while performing tasks for which they 
have been found proficient by an instruc- 
tor. These tasks shall be performed under 
the direct supervision of a registered 
nurse. The term does not apply to volun- 
teers. 

"Nursing Facility" means that portion of 
a nursing home certified under Title XIX 
of the Social Security Act (Medicaid) as 
in compliance with federal program 
standards for nursing facilities. It is 
often used as synonymous with the term 
"nursing home" which is the usual pre- 
requisite level for state licensure for 
nursing facility (NF) certification and 
Medicare skilled nursing facility (SNF) 
certification. 

"Nurse in Charge" means the nurse to 
whom duties for a specified number of 
patients and staff for a specified period of 
time have been delegated, such as for 
Unit A on the 7-3 or 3-11 shift. 



7:14 NORTH CAROLINA REGISTER October 15, 1992 



1353 



PROPOSED RULES 



(24) "On Duty" means personnel who are 
awake, dressed, responsive to patient 
needs and physically present in the facili- 
ty performing assigned duties. 

(25) "Patient" means any person admitted for 
care to a skilled nursing or intermediate 
care facility. 

(26) "Physician" means a person licensed 
under G.S. Chapter 90. Article 1 to 
practice medicine in North Carolina. 

(27) "Qualified Dietitian" means a person who 
meets the standards and qualification 
established by the Committee on Profes- 
sional Registration of the American Di- 
etetic Association. 

(28) "Registered Nurse" means a nurse who is 
duly licensed as a registered nurse under 
G.S. 90. Article 9A. 

(29) "Resident" means any person admitted 
for care to a domiciliary home. 

(30) "Sitter" means an individual employed to 
provide companionship and social inter- 
action to a particular resident or patient, 
usually on a private duty basis. 

(31) "Supervisor-in-Charge" means a duly 
licensed nurse to whom supervisory 
duties have been delegated by the Direc- 
tor of Nursing. 

(32) "Ventilator dependence" « — defined — as 
means physiological dependency by a 
patient on the use of a ventilator for more 
than eight hours a day. 

Statutory Authority G.S. 131E-79. 

.1927 BRAIN INJURY LONG TERM CARE 
PHYSICIAN SERVICES 

(a) In nursing facility beds designated as brain 
injury extended long term care units,, an attending 
physician shall be responsible for a patient's 
specialized extended long term care program. The 
intensity of the program requires that there shall be 
direct patient contact by a physician at least once 
a per week and more often as the patient's condi- 
tion warrants. Each patient's multi-discipline, 
extended long term care program shall be devel- 
oped and implemented under the supervision of a 
physiatrist (a physician trained in Physical Medi- 
cine and Rehabilitation) or a physician of equiva- 
lent training and experience. 

(b) If a physiatrist or physician of equivalent 
training or experience, is not available on a weekly 
basis to the facility, the facility shall provide for 
weekly medical management of the patient, by 
another physician , witlu In addition, oversight for 



the patient's multi-discipline extended long term 
care program shall be provided by a qualified 
consultant physician who visits patients monthly, 
makes recommendations for and approves the 
interdisciplinary care plan, and provides consulta- 
tion as requested to the physician who is managing 
the patient on a weekly basis. 

(c) The attending physician shall actively partici- 
pate in individual case conferences or care plan- 
ning sessions and shall complete review and sign 
discharge summaries and records within 15 days of 
patient discharge. When patients are to be dis- 
charged to either another health care facility or a 
residential setting the attending physician shall 
assure that the patient has been provided with a 
discharge plan which incorporates optimum utiliza- 
tion of community resources and post discharge 
continuity of care and services. 

Statutory- Authority- G.S. 131E-79. 

.1928 BRAIN INJURY LONG TERM CARE 
PROGRAM REQUIREMENTS 

(a) The general requirements in this Subchapter 
shall apply when applicable, but brain injury 
extended long term care units shall meet the 
supplement requirements in this Rule and Rules 
.1901 (4) and .1929 of this Section. Brain injury 
extended long term care is a multi discipline an 
interdisciplinary, intensive maintenance program 
for patients who have incurred brain damage 
caused by external physical trauma and who have 
completed a primary course of rehabilitative 
treatment and have reached a point of no gain or 
progress for more than three consecutive months. 
Services are provided through a medically super- 
vised interdisciplinary process as provided in Rule 
.1927 of this Section and are directed toward 
maintaining the individual at the optimal level of 
physical, cognitive and behavioral functioning. 
Following are the minimum requirements for 
specific services that may be necessary to main- 
taining the individual at optimum level: 

( 1 ) Overall supervisory responsibility for 
brain injury extended long term care 
services shall be assigned to a regis- 
tered nurse with one year experience jn 
caring for brain injured patients . 

(2) Physical Therapy therapy shall be 
provided by a physical therapist with a 
current valid North Carolina license 
working in the brain injury unit a mini 
mum of 20 hour s per week plus an 
additional two hour s per week for each 
patient in excess of ten (e.g., 20 pa 



1354 



7:14 NORTH CAROLINA REGISTER October 15, 1992 



PROPOSED RULES 



> 



ticnts, 4 hour s per week) The assis 
tancc of a phy s ical therapy a ss i s tant or 
aide shall be provided at the rate of two 
hour s — per week — per active — physical 
therapy patient on a facility wide ba s i s 
with a minimum of 4 hour s per week 
regardless of how small the cen s u s. 
@) Occupational therapy shall be provided 
by an occupational therapist with a 
current valid North Carolina License 
working in the unit 20 hours per week 
plus an additional two hours per week 
for each patient in excess often, (e.g.: 
20 pati e nts. 4 hour s per we e k) — T-fre 
assistanc e of an occupational therapy 
aide or assistant shall be provided at the 
rate of two houi3 per week per patient 
with a minimum of one full time aide . 
The services of a physical therapist and 
occupational therapist shall be com- 
bined to provide one full-time equiva- 
lent for each 20 patients. The assis- 
tance of a physical therapy aide and an 
occupational therapy aide with appro- 
priate supervision shall be combined to 
provide one full-time equivalent for 
each 20 patients. A proportionate 
number of hours shall be provided for 
a census less than 20 patients. 

(4) (3) Clinical nutrition services shall be 
provided by a qualified dietician with 
two years clinical training and experi- 
ence in nutrition. The number of hours 
of clinical nutrition services on either a 
full-time or part-time employment or 
contract basis shall be adequate to meet 
the needs of the patients. Each patient's 
nutrition needs shall be reviewed at 
least monthly. Clinical nutrition servic- 
es shall include: 

(A) Assessing the appropriateness of the 
ordered diet for conformance with 
each patient's physiological and 
pharma cologica l pharmacological 
condition; 

(B) Evaluating each patient's laboratory 
data in relation to nutritional status 
and hydration; 

(C) Applying technical knowledge of 
feeding tubes, pumps and equipment 
to each patient's specialized needs. 

(5) (4) Clinical Social Work shall be pro- 
vided by a Social Worker meeting the 
requirements of Rule . 1923 of this Section. 

(6) (5) Recreation therapy, when required. 



shall be provided on either a full-time 
or part-time employment or contract 
basis by a clinician eligible for certifi- 
cation as a therapeutic recreation spe- 
cialist by the State Board of Therapeu- 
tic Recreation Certification. The num- 
ber of hours of therapeutic recreation 
services shall be adequate to meet the 
needs of the patients. In the event that 
a qualified specialist is not locally 
available, alternate treatment modalities 
shall be developed by the occupational 
therapist and reviewed by the attending 
physician. The program designed must 
be adequate to meet the needs of this 
specialized population and must be 
administered in accordance with Section 
.1200 of this Subchapter. 

(7) (6) Speech therapy, when required, 
shall be provided by a clinician with a 
current valid license in speech patholo- 
gy issued by the State Board of Audiol- 
ogy and Speech Pathology. 

(8) (7) Respiratory therapy, when re- 
quired, shall be provided and super- 
vised by a respiratory therapist current- 
ly registered by the National Board for 
Respiratory Care. 

(b) Each patient's program shall be governed by 
a multi-discipline treatment plan incorporating and 
expanding upon the health plan required under 
Rules .1908 and .1909 of this Section. The plan 
is to be initiated on the first day of admission. 
Upon completion of baseline data development and 
an integrated interdisciplinary assessment the initial 
treatment plan is to be expanded and finalized 
within 14 days of admission. Through an inter- 
disciplinary process the treatment plan shall be 
reviewed at least monthly and revised as appropri- 
ate. In executing the treatment plan the interdisci- 
plinary team shall be the major decision-making 
body and shall determine the goals, process, and 
time frames for accomplishment of each patient's 
program. Disciplines to be represented on the 
team shall be medicine, nursing, clinical pharmacy 
and all other disciplines directly involved in the 
patient's treatment or treatment plan. 

(c) Each patient's overall program shall be 
assigned to an individually designated program 
case manager. The case manager acts as the 
coordinator manager for assigned patients. Any 
professional staff member involved in the patient's 
care may be assigned this responsibility for one or 
more patients. Professional staff may divide this 
responsibility for all patients on the unit in the best 



7:14 NORTH CAROLINA REGISTER October 15, 1992 



1355 



PROPOSED RULES 



manner to meet all patients' needs for a coordinat- 
ed interdisciplinary approach to care. The case 
manager shall be responsible for: 

(1) coordinating the development, imple- 

mentation and periodic review of the 
patient's treatment plan: 
preparing a monthly summary of the 
patient's progress: 

cultivating the patient's participation in 
the program; 

general supervision of the patient dur- 
ing the course of treatment; 
evaluating appropriateness of the treat- 
ment plan in relation to the attainment 
of stated goals: and 

assuring that discharge decisions and 

arrangements for post discharge 

follow-up are properly made. 

(d) For each 20 patients or fraction thereof 

dedicated treatment facilities and equipment shall 

be provided as follows: 



i2i 
(3) 

(4) 
(5) 

(6) 



(1) 



m 



A speech therapy room with dimensions 
which equal or exceed 175 square feet 
and which is so designed and main 
tained as to permit free movement of 
three — fully — opened — reclining — wheel 
chairs. A combined therapy space 
equal to or exceeding 600 square feet, 
adequately equipped and arranged to 
support each of the therapies. 
Two — occupational — physical — therapy 
room s . — each — wrth — dimensions — which 
equal or exceed 600 square foot. — Each 
room — s hall — be — equipped — with — throe 
double size mat tables, one tilt table, 
and one s ot of free s tanding or fold 
away parallel bar s . — Each room is to be 
plumbed with a si ale suitable for hand 
washing. — Each room s hall open direct 
ly to a wheel ehair acces s ible water 
closet. 

(2) Access to one full reclining wheel- 
chair per patient. 

(3) Special physical therapy and occu- 
pational therapy equipment for use in 
fabricating positioning devices for beds 
and wheelchairs including splints, casts, 
cushions, wedges, and bolsters. 

(4 1 There shall be roll-in bath facilities 
with a dressing area available to all 
patients which shall afford maximum 
privacy to the patient. 



Statutory Authorin G.S. 131E-79. 



(2) 

i4i 



(5) 



.1929 SPECIAL NURSING REQMTS FOR 
BRAIN INJURY LONG TERM CARE 

Direct care nursing personnel staffing ratio 
(NH/PD) established in Rule .1912 of this Section 
shall not be applied to nursing services for patients 
who require brain injury extended long term care, 
due to their more intensive maintenance and 
nursing needs . When s uch services arc provided 
the table in thi s Rule establishes the minimum 
acceptable — direct — eafe — nursing staff ratios — per 
patient (NHPt. The minimum direct care nursing 
staff shall be 5.5 hrs. per patient day allocated on 
a p_er shift basis as the facility chooses to appropri- 
ately meet the patient's needs. It is also required 
that regardless of how low the patient census the 
direct care nursing staff shall not fall below a 
registered nurse and a nurse aide I at any time 
during a 24 ; hour period. The minimum direct 
care nursing staff ratios are: 



STAFF 



ST SHIFT2ND SHIFT3D 



SHIFT 



DAILY 



POSITION 



STAFF RATIOS T A F F 



RATIO 



STAFF RATIOREQUIRE 



MENT 



RN- 



.8 NHP. 4 NHP. 4 NHP 



1.6 NHP 
fcPN 



.8 NHP. 8 NH/P. 4 NH P 



2.0 NHP 
NA4 



NHP 



.75 NHP. 75 NH P. 
1.9 NH/P 



NA (Trainee) 



-6- 



-000 



Statutory- Authority G.S. 131E-79. 

SUBCHAPTER 3H - RLLES FOR THE 
LICENSING OF NURSING HOMES 

SECTION .0100 - GENERAL 
INFORMATION 



apply throughout 



.0108 DEFLNITIONS 

The following definitions wil 
this Subchapter: 

( 1 ) "Accident" means an unplanned or un- 
wanted event resulting in the injury or 
wounding, no matter how slight, of a 
patient or other individual. 

(2) "Adequate" means, when applied to 
various services, that the services are at 
least satisfactory in meeting a referred to 
need when measured against contempo- 
rary professional standards of practice. 

(3) "Administrator" means the person who 



1356 



7:14 XORTH CAROLIXA REGISTER October IS, 1992 



PROPOSED RULES 



) 



has authority for and is responsible for (13) 

the overall operation of a facility. 

(4) "Appropriate" means right for the speci- 
fied use or purpose, suitable or proper 
when used as an adjective. When used 
as a transitive verb it means to set aside 
for some specified exclusive use. 

(5) "Brain injury extended long term care" is 
defined as a muiti — di s cipline an interdis- 
ciplinary, intensive maintenance program ( 14) 
for patients who have incurred brain 

damage caused by external physical 
trauma and who have completed a prima- 
ry course of rehabilitative treatment and 
have reached a point of no gain or prog- (15) 

ress for more than three consecutive 
months. Services are provided through a 
medically supervised interdisciplinary 
process and are directed toward maintain- 
ing the individual at the optimal level of (16) 
physical, cognitive and behavioral func- 
tions. 

(6) "Capacity" means the maximum number (17) 
of patient or resident beds for which the 

facility is licensed to maintain at any 

given time. (18) 

(7) "Combination facility" means a combina- 
tion home as defined in G.S. 131E-101. 

(8) "Convalescent Care" means care given 

for the purpose of assisting the patient or (19) 

resident to regain health or strength. 

(9) "Department" means the North Carolina (20) 
Department of Human Resources. 

(10) "Director of Nursing" means the nurse 
who has authority and direct responsibili- 
ty for all nursing services and nursing 
care. 

(11) "Drug" means substances: 

(a) recognized in the official United States 
Pharmacopoeia, official National For- 
mulary, or any supplement to any of 
them; 

(b) intended for use in the diagnosis, cure, (21) 
mitigation, treatment, or prevention of 

disease in man or other animals; 

(c) intended to affect the structure or any 
function of the body of man or other 
animals, i.e., substances other than 
food; and 

(d) intended for use as a component of any 

article specified in (a), (b), or (c) of (22) 

this Subparagraph. 

(12) "Duly Licensed" means holding a current 
and valid license as required under the 
General Statutes of North Carolina. 



"Existing Facility" means a facility cur- 
rently licensed or a proposed facility, 
proposed addition to a licensed facility or 
proposed remodeled licensed facility that 
will be built according to plans and speci- 
fications which have been approved by 
the Department through the preliminary 
working drawings state prior to the effec- 
tive date of this Rule. 
"Exit Conference" means the conference 
held at the end of a survey or investiga- 
tion between the Department's represen- 
tatives and the facility administration 
representative. 

"Incident" means an unplanned or un- 
wanted event which has not caused a 
wound or injury to any individual but 
which has the potential for such should 
the event be repeated. 
"Interdisciplinary" means an integrated 
process involving a representative from 
each discipline of the health care team. 
"Licensed Practical Nurse" means a 
nurse who is duly licensed as a practical 
nurse under G.S. 90, Article 9A. 
"Licensee" means the person, firm, 
partnership, association, corporation or 
organization to whom a license has been 
issued. 

"Medication" means drug as defined in 
(11) of this Rule. 

"New Facility" means a proposed facili- 
ty, a proposed addition to an existing 
facility or a proposed remodeled portion 
of an existing facility that is constructed 
according to plans and specifications 
approved by the Department subsequent 
to the effective date of this Rule. If 
determined by the Department that more 
than half of an existing facility is remod- 
eled, the entire existing facility shall be 
considered a new facility. 
"Nurse Aide" means any individual 
providing nursing or nursing-related 
services to patients in a facility who is 
not a licensed health professional, a 
qualified dietitian or someone who volun- 
teers to provide such services without 
pay, and listed in a nurse aide registry 
approved by the Department. 
"Nurse Aide Trainee" means an individu- 
al who has not completed an approved 
nurse aide training course and competen- 
cy evaluation and is demonstrating 
knowledge, while performing tasks for 



7:14 NORTH CAROLINA REGISTER October 15, 1992 



1357 



PROPOSED RULES 



which they have been found proficient by 
an instructor. These tasks shall be per- 
formed under the direct supervision of a 
registered nurse. The term does not apply 
to volunteers. 

(23) "Nursing Facility" means that portion of 
a nursing home certified under Title XIX 
of the Social Security Act (Medicaid) as 
in compliance with federal program 
standards for nursing facilities. It is 
often used as synonymous with the term 
"nursing home" which is the usual pre- 
requisite level of state licensure for nurs- 
ing facility (NF) certification and Medi- 
care skilled nursing facility (SNF) certifi- 
cation. 

(24) "Nurse in Charge" means the nurse to 
whom duties for a specified number of 
patients, residents and staff for a speci- 
fied period of time have been delegated, 
such as for Unit A on the 7-3 or 3-11 
shift. 

(25) "On Duty" means personnel who are 
awake, dressed, responsive to patient 
needs and physically present in the facili- 
ty performing assigned duties. 

(26) "Operator" means the owner of the nurs- 
ing home business. 

(27) "Patient" means any person admitted for 
nursing care. 

(28) "Person" means an individual, trust, 
estate, partnership or corporation includ- 
ing associations, joint-stock companies 
and insurance companies. 

(29) "Proposal" means a Negative Action 
Proposal containing documentation of 
findings that may ultimately be classified 
as violations and penalized accordingly. 

(30) "Provisional License" means an amended 
license recognizing significantly less than 
full compliance with the licensure rules. 

(31) "Physician" means a person licensed 
under G.S. Chapter 90. Article 1 to 
practice medicine in North Carolina. 

(32) "Qualified Dietitian" means a person who 
meets the standards and qualification 
established by the Commission on Dietet- 
ic Registration of the American Dietetic 
Association. 

(33) "Qualified Activities Director" means a 
person who has the authority and respon- 
sibility for the direction of all therapeutic 
activities in the nursing facility and who 
meets the qualifications set forth under 
10 NCAC 3H .1204. 



(34) 



(35) 



(36) 



(37) 



(38) 



(39) 



"Qualified Pharmacist" means a person 
who is licensed to practice pharmacy in 
North Carolina and who meets the quali- 
fications set forth under 10 NCAC 3H 
.0903. 

"Qualified Social Services Director" 
means a person who has the authority and 
responsibility for the provision of social 
services in the nursing home and who 
meets the qualifications set forth under 
10 NCAC 3H .1306. 
"Registered Nurse" means a nurse who is 
duly licensed as a registered nurse under 
G.S. 90, Article 9A. 
"Resident" means any person admitted 
for care to a domiciliary home part of a 
combination home as defined in G.S. 
131E-101. 

"Sitter" means an individual employed to 
provide companionship and social inter- 
action to a particular patient, usually on 
a private duty basis. 

" Supervisor- in-Charge (domiciliary 
home)" means any employee to whom 
supervisory duties for the domiciliary 
home portion of a combination home 
have been delegated by either the Admin- 
istrator or Director of Nursing. 
"Surveyor" means an authorized repre- 
sentative of the Department who inspects 
nursing facilities and combination facili- 
ties to determine compliance with rules as 
set forth in G.S. 131 E- 117 and applicable 
state and federal laws, rules and regula- 
tions. 

"Ventilator dependence" is defined as 
physiological dependency by a patient on 
the use of a ventilator for more than eight 
hours a day. 

"Violation" means a finding which direct- 
ly relates to a patient's health, safety or 
welfare or which creates a substantial 
risk that death or serious physical harm 
will occur and is determined to be an 
infraction of the regulations, standards 
and requirements set forth in G.S. 
131 E- 1 17 or applicable State and federal 
laws, rules and regulations. 



Authority G.S. 131E-104; 42 U.S.C. 1396 r (a). 

SECTION .0700 - PHYSICIAN SERVICES 

.0711 BRAIN INJURY LONG TERM CARE 
PHYSICIAN SERVICES 



(40) 



(41) 



(42) 



1358 



7:14 NORTH CAROLINA REGISTER October 15, 1992 



PROPOSED RULES 



(a) In nursing facilities wrtfr facility beds desig- 
nated as brain injury extended long term care 
units^ the an attending physician shall be responsi- 
ble for a patient's specialized care and rehabilita 
tteft program shall have specialized training in 
rehabilitation . The intensity of the program 
requires that there shall be direct patient contact by 
a physician at least once per week and more often 
as the patient's condition warrants. Each patient's 
multi-discipline rehabilitation program shall be 
developed and implemented under the supervision 
of the attending physician a physiatrist £a physician 
trained in Physical Medicine and Rehabilitation) or 
a physician of equivalent training and experience. 

(b) If a physiatrist or physician of equivalent 
training or experience js not available on a weekly 
basis to the facility, the facility shall provide for 
weekly medical management of the patient by 
another physician. In addition, oversight for the 
patient's multi-discipline, long term care program 
shall be provided by a qualified consultant physi- 
cian who visits patients monthly, makes recom- 
mendations for and approves the interdisciplinary 
care plan, and provides consultation as requested 
to the physician who js managing the patient on a 
weekly basis. 

(c) The attending physician shall actively partici- 
pate in individual case conferences or care plan- 
ning sessions and shall complete review and sign 
discharge summaries and records within 15 days of 
a patient discharge. When patients are to be 
discharged to either another health care facility or 
a residential settings the attending physician shall 
assure that the patient has been provided with a 
discharge plan which incorporates optimum utiliza- 
tion of community resources and post discharge 
continuity of care and services. 

Statutory Authority G.S. 131E-W4. 

SECTION .1100 - SPECIALIZED 

REHABILITATIVE AND HABILITATIVE 

SERVICES 

.1108 BRAIN INJURY LONG TERM CARE 

(a) The general requirements in this Subchapter 
shall apply when applicable, but brain injury 
extended long term care units shall meet the 
supplement requirements in Rules . I 108 and . 1 109 
of this Section. Brain injury e xtended long term 
care is a — multi discipline an interdisciplinary. 
intensive maintenance program for patients who 
have incurred brain damage caused by external 
physical trauma and who have completed a prima- 



ry course of rehabilitative treatment and have 
reached a point of no gain or progress for more 
than three consecutive months. Services are 
provided through a medically supervised interdisci- 
plinary process as provided in Rule .0711 of this 
subchapter and are directed toward maintaining the 
individual at the optimal level of physical, cogni- 
tive and behavioral functioning. Following are the 
minimum requirements for specific services that 
may be necessary to maintaining the individual at 
optimum level: 

(1) Overall supervisory responsibility for 
brain injury extended long term care 
services shall be assigned to a regis- 
tered nurse with one year experience in 
caring for brain injured patients . 

(2) Physical Therapy therapy shall be 
provided by a physical therapist with a 
current valid North Carolina license 
working in the brain injury unit a mini 
mum of 20 hour s per week plu s an 
additional two hour s per week for each 

patient in exce ss — of ten. (e.g.: 20 

patients' — 40 — hours — pef — week) The 

assistance of a physical therapy a ss i s 
tant or aide s hall be provided at the rate 
of two hours per week per active phy s i 
eal therapy patient on a facility wide 
basis with a minimum of 4 hour s per 
week regardless of how s mall the een 
sus . 

0) Occupational therapy shall be provided 
by an occupational therapist with a 
current valid North Carolina License 
working in the unit 20 hours per week 
plu s an additional two hours per week 
for each patient in excess often, (e.g.: 
20 patient s ' 4 hours per week) — T4n? 
assistance of an occupational therapy 
aide or assistant shall be provided at the 
rate of two hours per week per patient 
with a minimum of one full time aide . 
The services of a physical therapist and 
occupational therapist shall be com- 
bined to provide one full-time equiva- 
lent position for each 20 patients. The 
assistance of a physical therapy aide 
and occupational therapy aide, with 
appropriate supervision, shall be com- 
bined to provide one full-time equiva- 
lent position for each 20 patients. A 
proportionate number of hours shall be 
provided for a census less than 20 
patients. 

(4) (3) Clinical nutrition services shall be 



7:14 NORTH CAROLINA REGISTER October 15, 1992 



1359 



PROPOSED RULES 



provided by a qualified dietician with 
two years clinical training and experi- 
ence in nutrition. The number of hours 
of clinical nutrition services on either a 
full time or part time employment or 
contract basis shall be adequate to meet 
the needs of the patients. Each 
patient's nutrition needs shall be re- 
viewed at least monthly. Clinical nutri- 
tion services shall include: 

(A) Assessing the appropriateness of the 
ordered diet for conformance with 
each patient's physiological and phar- 
macological condition. 

(B) Evaluating each patient's laboratory 
data in relation to nutritional status 
and hydration. 

(C) Applying technical knowledge of 
feeding tubes, pumps and equipment 
to each patient's specialized needs. 

(§) (4) Clinical Social Work shall be pro- 
vided by a Social Worker meeting the 
requirements of Rule .1306 of this 
Subchapter. 

(6) (5) Recreation therapy, when required, 
shall be provided on either a full-time 
or part-time employment or contract 
basis by a clinician eligible for certifi- 
cation as a therapeutic recreation spe- 
cialist by the State Board of Therapeu- 
tic Recreation Certification. The num- 
ber of hours of therapeutic recreation 
services shall be adequate to meet the 
needs of the patients. In event that a 
qualified specialist is not locally avail- 
able, alternate treatment modalities shall 
be developed by the occupational thera- 
pist and reviewed by the attending 
physician. The program designed must 
be adequate to meet the needs of this 
specialized population and must be 
administered in accordance with Section 
.1200 of this Subchapter. 

(7) (6) Speech therapy, when required, 
shall be provided by a clinician with a 
current valid license in speech patholo- 
gy issued by the State Board of Audiol- 
ogy and Speech pathology. 

(8) (7) Respiratory therapy, when re- 
quired, shall be provided by an individ- 
ual meeting the same qualifications for 
providing respiratory therapy under 
Rule .1 107 of this Section. 

(b) Each patient's program shall be governed by 
a multi-discipline treatment plan incorporating and 



expanding upon the health plan required under 
Section .0400 of this Subchapter. The plan is to 
be initiated on the first day of admission. Upon 
completion of baseline data development and an 
integrated interdisciplinary assessment the initial 
treatment plan is to be expanded and finalized 
within 14 days of admission. Through an interdis- 
ciplinary process the treatment plan shall be 
reviewed at least monthly and revised as appropri- 
ate. In executing the treatment plan the interdisci- 
plinary team shall be the major decision making 
body and shall determine the goals, process, and 
time frames for accomplishment of each patient's 
program. Disciplines to be represented on the 
team shall be medicine, nursing, clinical pharmacy 
and all other disciplines directly involved in the 
patient's treatment or treatment plan. 

(c) Each patient's overall program shall be 
assigned to an individually designated program 
case manager. The case manager acts as the 
coordinator for assigned patients. Any profession- 
al staff member involved in a patient's care may 
be assigned this responsibility for one or more 
patients. Professional staff may divide this respon- 
sibility for all patients on the unit in the best 
manner to meet all patients' needs for a coordinat- 
ed, interdisciplinary approach to care. The case 
manager shall be responsible for: 

(1) coordinating the development, imple- 
mentation and periodic review of the 
patient's treatment plan; 

(2) preparing a monthly summary of the 
patient's progress; 

(3) cultivating the patient's participation in 
the program; 

(4) general supervision of the patient dur- 
ing the course of treatment; 

(5) evaluating appropriateness of the treat- 
ment plan in relation to the attainment 
of stated goals; and 

(6) assuring that discharge decisions and 
arrangements for post discharge 
follow-up are properly made. 

(d) For each 20 patients or fraction thereof 
dedicated treatment facilities and equipment shall 
be provided as follows: 

(1) A s p e ech therapy room with dimen s ion s 
which equal or exceed 175 s quare feet 
and which is so designed and main 
tained a s to permit free movement of 
three — fully — opened — reclining — wheel 
chairs. A combined therapy space 
equal to or exceeding 600 square feet, 
adequately equipped and arranged to 
support each of ffie therapies; 



1360 



7:14 NORTH CAROLINA REGISTER October 15, 1992 



PROPOSED RULES 



&- 



Two occupational/phy s ical therapy 

rooms. — each — with — dimensions — which 



jqual 



jed 600 



feet. — Each 



equal or exceed bUU square 
room — s hall — be — equipped — wrtb — three 
double size mat table s , one tilt table, 
and one set of free s tanding or fold 



allol bar s . — Each roor 



to be 



(4. 



(5) 



away par 

plumbed with a sink suitable for hand 

washing. — Each room s hall open direct 

\y — te — a — whee l chair — accessible — water 

clo s et. 

(2) Access to one full reclining wheel- 
chair per patient. 

(3) Special physical therapy and occu- 
pational therapy equipment for use in 
fabricating positioning devices for beds 
and wheelchairs including splints, casts, 
cushions, wedges, and bolsters. 

(4) There shall be roll-in bath facilities 
with a dressing area available to all 
patients which shall afford maximum 
privacy to the patient. 



Statutory Authority G.S. 131E-104. 

.1109 SPECIAL NURSING REQMTS FOR 
BRAIN INJURY LONG TERM CARE 

Direct care nursing personnel staffing ratios 
established in Section .0500 of this Subchapter 
shall not be applied to nursing services for patients 
who require brain injury extended long term care^ 
due to their more intensive maintenance and 
nursing needs . When s uch s ervice s are provided, 
the table in thi s Rule establishes the minimum 
acceptable — direct — eafe — nur s ing — s taff ratio s — pef 
patient. The minimum direct care nursing staff 
shall be 5JS hours per patient day, allocated on a 
per shift basis as the facility chooses, to appropri- 
ately meet the patients' needs. lt is also required 
that regardless of how low the patient census, the 
direct care nursing staff shall not fall below a 
registered nurse and a nurse aide I at any time 
during a 24-hour period. The minimum direct 
care nursing staff ratios arc: 



NH/P 
LPN 



.8 NH/P 



NH/P 



. 4 NH/P 



NH/P 

NA1 



.75 NH/P 



-3-5 



NH/P 



. 4 NH/P 



NH/P 

NA (Trainee) 



-000 



Statutory Authority G.S. 131E-W4. 



iSotice is hereby given in accordance with G.S. 
150B-21.2 that the Medical Care Commission 
(Division of Facility Services) intends to amend 
rules cited as 10 NCAC 3H .0108, .0311, .0313 - 
.0314. .0316 and .0505 and adopt rules cited as 
10 NCAC 3C .2001 - .2008: 3H .1130- .1136. 

1 he proposed effective date of this action is 
February 1. 1993. 

1 he public hearing will be conducted at 9:30 
a.m. on December 4, 1992 at the Council Build- 
ing. Room 201. 701 Barbour Drive. Raleigh. NC 
27603. 

Reason for Proposed Actions: To establish HIV 
rules for hospitals and nursing homes which 
develop HIV specialty units or facilities. 

X^omment Procedures: Written comments should 
be submitted to Jackie Sheppard, 701 Barbour 
Drive. Raleigh, North Carolina 27603, by Novem- 
ber 16, 1992. 

CHAPTER 3 - FACILITY SERVICES 

SUBCHAPTER 3C - LICENSING OF 
HOSPITALS 



STAFF 



SHIFT 



POSITION 



RATIO 



REQUIRE 



RN- 



NH/P 



1ST SHIFT 



3RD SHIFT 



STAFF RATIO 



STAFF RATIO 



.8 NH/P 



. 4 NH/P 



2ND 



DALY 



STAFF 



\S5VT- 



SECTION .2000 - SPECIALIZED 

REHABILITATIVE AND HABILITATIVE 

SERVICES 

.2001 ADMISSIONS TO THE HIV 
DESIGNATED UNIT 

(a) No patient shall be discriminated against in 
admission practices based on the diagnosis of 
Human Immunodeficiency Virus disease. 

(b) If a facility declines admission to a patient 



7:14 NORTH CAROLINA REGISTER October 15, 1992 



1361 



PROPOSED RULES 



known to have Human Immunodeficiency Virus 
disease, the reasons for the denial shall be docu- 
mented. 

Statutory Authority G.S. 131E-79. 

.2002 DISCHARGE OF PATIENTS FROM 
THE HIV DESIGNATED UNIT 

A record shall be maintained of aU discharges of 
patients indicating the reasons for discharge, the 
physician's order for or other authorization for 
discharge, and the condition of the patient at the 
time of discharge. 

A patient known to have Human Immunodefi- 
ciency Virus disease may not be discharged solely 
on the basis of the diagnosis of Human Immunode- 
ficiency Virus disease except as authorized by the 
provisions of N'.C. General Statute 1 3 1 E- 1 1 7 (15) 
or other provisions of the N'.C. General Statutes or 
regulations promulgated thereunder or provisions 
of applicable federal laws and regulations. 

Statutory Authority G.S. 131E-79. 

.2003 HIV DESIGNATED UNIT POLICIES 
AND PROCEDURES 

(a) In units dedicated to the treatment of patients 
with Human Immunodeficiency Vims disease, 
policies and procedures specific to the specialized 
needs of the patients served shall be developed. 
At a minimum they shall include staff training and 
education, and the availability of consultation by a 
physician with specialized education or knowledge 
in the management of Human Immunodeficiency 
Virus disease. 

(b) Policies and procedures for infection control 
shall be in conformance with 29 CFR 1910 
Occupational Safety and Health Standards which is 
incorporated by reference including subsequent 
amendments. Emphasis shall be placed on compli- 
ance with 29 CFR 1910-1030 (Bloodbourne Patho- 
gens). Copies of Title 29 Part 1910 may be 
purchased from the Superintendent of Documents. 
U.S. Government Printing Office. Washington. 
D.C. 20402 for $38.00 and may be purchased with 
a credit card by a direct telephone call to the 
G.P.O. at (202) 783-3238. Infection control shall 
also be in compliance with the Center of Disease 
Control Guidelines as published by the U.S. 
Department of Health and Human Services. Public 
Health Service which is incorporated by reference 
including subsequent amendments. Copies may be 
rnnvha^cd from the Nationa l Te chnic al Information 
Service. IS. Department of Commerce. 5285 
Port Royal Road. Springfield. Virginia. 22161 for 



S15.95. 

Statutory Authority G.S. 131E-79. 

.2004 PHYSICIAN SERVICES LN A HIV 
DESIGNATED UNIT 

In facilities with a Human Immunodeficiency 
Virus designated unit the facility shall insure that 
attending physicians have documented, pre-ar- 
ranged access, either in person or by telephone, to 
a physician with specialized education or knowl- 
edge in the management of Human Immunodefi- 
ciency Virus Disease. 

Statutory Authority G.S. 131E-79. 

.2005 SPECIAL NURSING 

REQUIREMENTS FOR A HIV 
DESIGNATED UNIT 

(a) Facilities with a Human Immunodeficiency 
Virus designated unit shall have a registered nurse 
with specialized education or knowledge in the 
care of Human Immunodeficiency Virus disease. 

(b) Nursing personnel assigned to the Human 
Immunodeficiency Virus unit shall be regularly 
assigned to the unit. Rotations are acceptable to 
alleviate staff burnout or staffing emergencies. 

Statutory Authority G.S. 131E-79. 

.2006 SPECIALIZED STAFF EDUCATION 
FOR THE HIV DESIGNATED UNIT 

For facilities with a Human Immunodeficiency 
Virus designated unit an organized, documented 
program of education specific to the care of pa- 
tients infected with the Human Immunodeficiency 
Virus shall be provided and include at a minimum: 

( 1 ) Human Immunodeficiency Vims and 
Acquired Immune Deficiency Syndrome 
disease processes; 

(2) transmission modes, causes, and preven- 
tion of Human Immunodeficiency Vims; 

(3) treatment of Human Immunodeficiency 
Vims and Acquired Immune Deficiency 
Syndrome; 

(4) psycho-socio-economic needs of the 
Human Immunodeficiency Vims and 
Acquired Immune Deficiency Syndrome 
patients; 

(5) in addition to the general hospital orienta- 
tion to Occupational Safety and Health 
Administration guidelines for universal 
precautions, orientation to infection 
control specific to Human Immunodefi- 
ciency Vims disease must be provided 



1362 



7:14 NORTH CAROLINA REGISTER October 15. 1992 



PROPOSED RULES 



16] 
Ol 



upon employment or permanent assign- 
ment to the unit; Copies of Title 29 Part 
1910 may be purchased from the Super- 
intendent of Documents, U.S. Govern- 
ment Printing Office, Washington, D.C. 
20402 for $38.00 and may be purchased 
with a credit card by a direct telephone 
call to the G.P.O. at (202) 783-3238; 
policies and procedures specific to the 
Human Immunodeficiency Virus desig- 
nated unit; and 

annual continuing education jn infection 
control. 



Statutory Authority G.S. 131E-79. 

.2007 USE OF INVESTIGATIONAL DRUGS 
ON THE HIV DESIGNATED UNIT 

(a) The supervision and monitoring for the 
administration of investigational drugs is the 
responsibility of the pharmacist and a licensed 
registered nurse, acting pursuant to the orders of 
a physician duly authorized to prescribe or dis- 
pense such drugs. Responsibilities shall include, 
but not be limited to. the following: 

( 1 ) to insure the provision of written guide- 
lines for any investigational drug or 
study are provided; and 

(2) training and determination of staffs 
abilities regarding administration of 
drugs, policies and procedures and 
regulations. 

(b) The pharmacist or physician dispensing the 
investigational drug is to provide the facility with 
information regarding at least the following: 

( 1 ) a copy of the protocol, including drug 
information; 

a copy of the patient's informed con- 
sent; 

drug storage; 
handling; 

any specific preparation and administra- 
tion instructions; 

specific details for drug accountability, 
resupply and return of unused drug; 
and 

a copy of the signed consent to partici- 
pate in the study. 

(c) Labeling of investigational drugs shall be in 
accordance with written guidelines of protocol and 
State and federal requirements regarding such 
drugs. Prescription labels for investigational drugs 
are to be distinguishable from other labels by an 
appropriate legend, "Investigational Drug" or "For 
Investigational Use Only". 



Ol 

Ql 

Mi 

Ol 
Ol 



Ol 



Statutory Authority G.S. 131E-79. 

.2008 SOCIAL WORK SERVICES IN A HIV 
DESIGNATED UNIT 

The facility shall provide either by direct em- 
ployment or by contract for social work services to 
include assistance to the patient [n identification of 
supportive resources, financial services and assis- 
tance with discharge and transfer arrangements. In 
addition, for patients in a Human Immunodeficien- 
cy Virus disease designated unit, the social worker 
shall provide or arrange for the provision of 
spiritual, pastoral and grief counseling for patients 
and staff where appropriate. Support services 
shall be provided to patient families and significant 
others. Where necessary, coordination with 
treatment services for substance abuse, legal 
services and other community resources shall be 
identified. 

Statutory Authority G.S. 131E-79. 

SUBCHAPTER 3H - RULES FOR THE 
LICENSING OF NURSING HOMES 

SECTION .0100 - GENERAL 
INFORMATION 

.0108 DEFINITIONS 

The following definitions will apply throughout 
this Subchapter: 

(1) "Accident" means an unplanned or un- 
wanted event resulting in the injury or 
wounding, no matter how slight, of a 
patient or other individual. 

(2) "Adequate" means, when applied to 
various services, that the services are at 
least satisfactory in meeting a referred to 
need when measured against contempo- 
rary professional standards of practice. 

(3) "Administrator" means the person who 
has authority for and is responsible for 
the overall operation of a facility. 

(4) "Appropriate" means right for the speci- 
fied use or purpose, suitable or proper 
when used as an adjective. When used 
as a transitive verb it means to set aside 
for some specified exclusive use. 

(5) "Brain injury extended care" is defined as 
a multi- discipline maintenance program 
for patients who have incurred brain 
damage caused by external physical 
trauma and who have completed a prima- 
ry course of rehabilitative treatment and 
have reached a point of no gain or prog- 



7:14 NORTH CAROLINA REGISTER October 15, 1992 



1363 



PROPOSED RULES 



(6) 

(7) 
(8) 

(9) 

(10) 



(11) 
(a) 



(b) 
(c) 

(d) 

(12) 
(13) 



151 



ress for more than three consecutive 
months. Services are provided through a 
medically supervised interdisciplinary 
process and are directed toward maintain- (4-S) 

ing the individual at the optimal level of 
physical, cognitive and behavioral func- 
tions. 

"Capacity" means the maximum number 
of patient or resident beds for which the (4-6) 

facility is licensed to maintain at any 
given time. 

"Combination facility" means a combina- 
tion home as defined in G.S. 131 E- 101. (4-?) 
"Convalescent Care" means care given 
for the purpose of assisting the patient or 
resident to regain health or strength. (4-8) 
"Department" means the North Carolina 
Department of Human Resources. 
"Director of Nursing" means the nurse 
who has authority and direct responsibili- (4-9) 
ty for all nursing services and nursing 
care. (30) 
"Drug" means substances: 

recognized in the official United States 

Pharmacopoeia, official National For- 
mulary, or any supplement to any of 

them; 

intended for use in the diagnosis, cure, 

mitigation, treatment, or prevention of 

disease in man or other animals; 

intended to affect the structure or any 

function of the body of man or other 

animals, i.e., substances other than (34-) 

food; and 

intended for use as a component of any 

article specified in (a), (b). or (c) of 

this Subparagraph. 
"Duly Licensed" means holding a current 
and valid license as required under the 
General Statutes of North Carolina. 
"Existing Facility" means a facility cur- (33) 

rently licensed or a proposed facility, 
proposed addition to a licensed facility or 
proposed remodeled licensed facility that 
will be built according to plans and speci- 
fications which have been approved by 
the Department through the preliminary 
working drawings state prior to the effec- 
tive date of this Rule. 
"Exit Conference" means the conference 
held at the end of a survey or investiga- (35) 

tion between the Department's represen- 
tatives and the facility administration 
representative. 
"HIV Unit" means designated areas 



dedicated to patients or residents known 
to have Human Immunodeficiency Virus 
disease, 

(16 ) "Incident" means an unplanned or 
unwanted event which has not caused a 
wound or injury to any individual but 
which has the potential for such should 
the event be repeated. 

(17 ) "Interdisciplinary" means an inte- 
grated process involving a representative 
from each discipline of the health care 
team. 

(18) "Licensed Practical Nurse" means a 
nurse who is duly licensed as a practical 
nurse under G.S. 90, Article 9A. 

( 19 ) "Licensee" means the person, firm, 
partnership, association, corporation or 
organization to whom a license has been 
issued. 

( 20 ) "Medication" means drug as defined 
in ( 1 1 ) of this Rule. 

( 21 ) "New Facility" means a proposed 
facility, a proposed addition to an exist- 
ing facility or a proposed remodeled 
portion of an existing facility that is 
constructed according to plans and speci- 
fications approved by the Department 
subsequent to the effective date of this 
Rule. If determined by the Department 
that more than half of an existing facility 
is remodeled, the entire existing facility 
shall be considered a new facility. 

(22 ) "Nurse Aide" means any individual 
providing nursing or nursing-related 
services to patients in a facility who is 
not a licensed health professional, a 
qualified dietitian or someone who volun- 
teers to provide such services without 
pay, and listed in a nurse aide registry 
approved by the Department. 

( 23 ) "Nurse Aide Trainee" means an 
individual who has not completed an 
approved nurse aide training course and 
competency evaluation and is demonstrat- 
ing knowledge, while performing tasks 
for which they have been found profi- 
cient by an instructor. These tasks shall 
be performed under the direct supervision 
of a registered nurse. The term does not 
apply to volunteers. 

(24) "Nursing Facility" means that por- 
tion of a nursing home certified under 
Title XIX of the Social Security Act 
(Medicaid) as in compliance with federal 
program standards for nursing facilities. 



1364 



7:14 NORTH CAROLINA REGISTER October 15, 1992 



PROPOSED RULES 



) 



It is often used as synonymous with the 
term "nursing home" which is the usual 
prerequisite level of state licensure for 
nursing facility (NF) certification and 
Medicare skilled nursing facility (SNF) 
certification. 

(34) (25) "Nurse in Charge" means the nurse 
to whom duties for a specified number of 
patients, residents and staff for a speci- 
fied period of time have been delegated, 
such as for Unit A on the 7-3 or 3-11 
shift. 

(35) (26) "On Duty" means personnel who are 
awake, dressed, responsive to patient 
needs and physically present in the facili- 
ty performing assigned duties. 

(36) (27) "Operator" means the owner of the 
nursing home business. 

(37) (28) "Patient" means any person admitted 
for nursing care. 

(38) (29) "Person" means an individual, trust, 
estate, partnership or corporation includ- 
ing associations, joint-stock companies 
and insurance companies. 

(39) (30) "Proposal" means a Negative Action 
Proposal containing documentation of 
findings that may ultimately be classified 
as violations and penalized accordingly. 

(30) (3_1) "Provisional License" means an 
amended license recognizing significantly 
less than full compliance with the licen- 
sure rules. 

(34) (32) "Physician" means a person licensed 
under G.S. Chapter 90, Article 1 to 
practice medicine in North Carolina. 

(33) (33) "Qualified Dietitian" means a person 
who meets the standards and qualification 
established by the Commission on Dietet- 
ic Registration of the American Dietetic 
Association. 

(33) (34) "Qualified Activities Director" 
means a person who has the authority 
and responsibility for the direction of all 
therapeutic activities in the nursing facili- 
ty and who meets the qualifications set 
forth under 10 NCAC 3H .1204. 

(34) (35) "Qualified Pharmacist" means a 
person who is licensed to practice phar- 
macy in North Carolina and who meets 
the qualifications set forth under 10 
NCAC 3H .0903. 

(35) (36) "Qualified Social Services Director" 
means a person who has the authority and 
responsibility for the provision of social 
services in the nursing home and who 



meets the qualifications set forth under 
10 NCAC 3H .1306. 

(36) (37) "Registered Nurse" means a nurse 
who is duly licensed as a registered nurse 
under G.S. 90, Article 9A. 

(37) (38) "Resident" means any person admit- 
ted for care to a domiciliary home part of 
a combination home as defined in G.S. 
131E-101. 

(38) (39) "Sitter" means an individual em- 
ployed to provide companionship and 
social interaction to a particular patient, 
usually on a private duty basis. 

(39) (40) "Supervisor-in-Charge (domiciliary 
home)" means any employee to whom 
supervisory duties for the domiciliary 
home portion of a combination home 
have been delegated by either the Admin- 
istrator or Director of Nursing. 

(40) (4J_) "Surveyor" means an authorized 
representative of the Department who 
inspects nursing facilities and combina- 
tion facilities to determine compliance 
with rules as set forth in G.S. 131 E- 117 
and applicable state and federal laws, 
rules and regulations. 

(44) (42) "Ventilator dependence" is defined 
as physiological dependency by a patient 
on the use of a ventilator for more than 
eight hours a day. 

(43) (43) "Violation" means a finding which 
directly relates to a patient's health, 
safety or welfare or which creates a 
substantial risk that death or serious 
physical harm will occur and is deter- 
mined to be an infraction of the regula- 
tions, standards and requirements set 
forth in G.S. 131 E- 117 or applicable 
State and federal laws, rules and regula- 
tions. 

Authority G.S. 1 31 E- 104; 42 U.S.C. 1396 r (a). 

SECTION .0300 - GENERAL STANDARDS 
OF ADMINISTRATION 

.0311 ADMISSIONS 

(a) No patient shall be admitted except under the 
orders of a duly licensed physician. 

(b) The Administrator shall assure tuberculosis 
and other communicable disease screening on 
admission and tuberculosis screening annually 
thereafter until final discharge. Identification of a 
communicable disease does not, in all cases, in 
and of itself, preclude admission to the facility. 



7:14 NORTH CAROLINA REGISTER October 15, 1992 



1365 



PROPOSED RULES 



The facility shall provide appropriate care and 
treatment. 

(c) The facility shall acquire prior to or at the 
time of admission orders from the attending physi- 
cian for the immediate care of the patient or 
resident. 

(d) Within 48 hours of admission, the facility 
shall acquire medical information which shall 
include current medical findings, diagnosis, reha- 
bilitation potential, a summary of the hospital stay 
if the patient is being transferred from a hospital, 
and orders for the ongoing care of the patient. 

(e) If a patient is admitted from somewhere 
other than a hospital, a physical examination shall 
be performed either within 5 days prior to admis- 
sion or within 48 hours following admission. 

(f) New facilities must prepare a plan of admis- 
sion which, at a minimum, assures ayailable staff 
time and plans for individual patient assessment, 
initiation of health care or nursing care plans, and 
implementation of physician and nursing treatment 
plans. This plan must be ayailable for inspection 
during the initial licensure survey prior to issuance 
of a license. 

(g) Only persons who are 18 years of age or 
older shall be admitted to the domiciliary home 
portion of a combination facility. 

Statutory Authority G.S. 131E-104. 

.0313 DISCHARGE OF PATIENTS 

A record shall be maintained of all discharges of 
patients indicating the reasons for discharge, the 
physician's order for or other authorization for 
discharge, and the condition of the patient at the 
time of discharge. 

A patient known to have Human Immunodefi- 
ciency Virus disease may not be discharged solely 
on the basis of the diagnosis of Human Immunode- 
ficiency Virus disease except as authorized by the 
provisions of N.C General Statute 1 3 1 E- 1 17 (15) 
or other provisions of the N.C. General Statutes or 
regulations promulgated thereunder or provisions 
of applicable federal laws and regulations. 

Statutory Authority G.S. 131E-104. 

.0314 POLICIES AND PROCEDURES 

The facility Administrator shall assure written 
policies and procedures which are available to and 
implemented by staff. These policies and proce- 
dures shall cover at least the following areas: 

(1) admissions; 

(2) dietary; 

(3) discharges with physician orders and/or 



patients or residents leaving against 
physician advice; 

(4) gratuities and solicitation which at a 
minimum shall provide that no owner, 
operator, agent or employee of a facility 
nor any member of his family shall ac- 
cept a gratuity directly or indirectly from 
any patient or resident in the facility or 
solicit for any type of contribution; 

(5) housekeeping; 

(6) infection control which must include, but 
is not limited to, requirements for ster- 
ile T and aseptic and isolation techniques; 
universal and isolation precautions and 
communicable disease screening includ- 
ing at a minimum annual tuberculosis 
screening for all staff and inpatients of 
the facility; 

(7) maintenance of patient medical or health 
care records including charting or record 
keeping; 

(8) orientation of all facility personnel; 

(9) patient or resident care plans, treatment 
and other health care or nursing care, 
including but not limited to all policies 
and procedures required by rules con- 
tained in this Subchapter; 

(10) patients' or residents' rights; 

(11) physical evaluation for residents and 
patients at least annually; 

(12) physician services and utilization of the 
individual's private physician; 

(13) procurement of supplies and equipment to 
meet individual patient care needs; 

(14) protection of patients from abuse and 
neglect; 

(15) range of services provided; 

(16) recording and reporting to the Depart- 
ment of accidents or incidents occurring 
to patients in any part of the facility and 
maintenance of such reports or records; 

(17) rehabilitation services; 

(18) release of medical record information; 

(19) screening and reporting communicable 
disease to the Department (Division of 
Health Services) and local health Depart- 
ment; 

(20) transfers. 

Statutory Authority G.S. 131E-104. 

.0316 SAFETY AND ENVIRONMENTAL 
CONTROL 

(a) A licensed facility shall have policies and 
procedures for patient safety and for environmental 



1366 



7:14 XORTH CAROLINA REGISTER October 15, 1992 



PROPOSED RULES 



control which at a minimum shall include infection 
control. 

(b) A facility with a licensed capacity of 51 beds 
or more shall have a safety and environmental 
control committee which includes representation 
from administration; medical and nursing staff; 
pharmacy; maintenance, engineering or housekeep- 
ing; and dietary services. 

(c) A facility with a licensed capacity of 50 beds 
or less shall have a safety and environmental 
control committee which at a minimum includes 
the Administrator and Director of Nursing. 

(d) All committee members shall be designated 
in writing. 

(e) Responsibilities and duties of any safety and 
environmental committee shall include, but not be 
limited to, the following: 

(1) meet at least quarterly, maintain min- 
utes insufficient detail to document 
committee proceedings and actions, and 
submit reports to the Administrator; 

(2) establish an incident and accident re- 
porting system in accordance with 
facility policies which includes a mech- 
anism for reviewing, investigating and 
evaluating all incidents and accidents 
reported. The committee shall docu- 
ment all reviews and action(s) taken; 

(3) conduct hazard surveillance program; 

(4) conduct fire protection program which 
includes: 

(A) development and adoption of a com- 
prehensive fire and disaster plan; 

(B) instruction and fire drills for all em- 
ployees in the following: 

mi use of all alarms and signals; 

(ii) methods of fire containment; 

(iii) location and use of fire fighting 
equipment; 

(iv) where, when and how to shut off 
oxygen and air conditioning; 

(v) evacuation routes and procedures; 
and 

(vi) transmission of an alarm to the 
fire Department or other responsi- 
ble emergency services; 

(C) assignment of specific responsibilities 
and tasks to all personnel in response 
to an alarm; and a fire drill for each 
shift of employees at least quarterly; 

(5) conduct water temperature surveillance 
program which assures compliance with 
Rule .1807(d) of this Subchapter; 

(6) annually review policies and procedures 
for infection and communicable disease 



control; 

(A) handling food; 

(B) processing laundry; 

(C) disposing of environmental or other 
wastes and patient or resident surgical 
or wound dressings, personal care 
pads or other wastes; 

(D) controlling pests and reporting infec- 
tions and diseases; 

(7) monitor overall environmental/infection 
control and implementation of safety 
policies and procedures; a«d 

(8) monitor staff development to assure 
active ongoing inservice training at 
least annually which shall include uni- 
versal precautions and tfi other areas of 
safety and environmental/infection 
control for all personnel; and 

(9) acting on requirements or recommenda- 
tions from Occupational Safety and 
Health Administration inspectors. 

Statutory Authority G.S. 131E-104. 

SECTION .0500 - NURSING SERVICES 

.0505 NURSING/HEALTH CARE 
ADMINISTRATION AND 
SUPERVISION 

(a) A licensed facility shall have a Director of 
Nursing service who shall be responsible for the 
overall organization and management of all nursing 
services and shall be currently licensed to practice 
as a registered nurse by the North Carolina Board 
of Nursing in accordance with G.S. 90, Article 
9A. 

(b) The Director of Nursing shall not serve as 
Administrator or Assistant Administrator. 

(c) A licensed facility, with nursing facilities or 
combination facilities shall provide a full-time 
Director of Nursing on duty at least eight hours 
per day, five days a week. A registered nurse 
shall relieve the Director of Nursing (be in charge 
of nursing) during the Director's absence. 

(d) A licensed facility shall employ and assign 
registered nurse, licensed practical nurses and 
nurse aides for duties in accordance with G.S. 90, 
Article 9A. 

(e) The Director of Nursing shall cause the 
following to be accomplished: 

(1) establishment and implementation of 

nursing policies and procedures which 

shall include but not be limited to the 

following; 

(A) assessment of the planning for 



7:14 NORTH CAROLINA REGISTER October 15. 1992 



1367 



PROPOSED RULES 



(B) 



(C) 



(D) 
(E) 



(] I 

(G) 



(H) 



patients" nursing care or health care 
needs, and implementation of nurs- 
ing/health care plans; 
daily charting of any unusual occur- 
rences of acute episodes related to 
patient care, and progress notes writ- 
ten monthly reporting each patient's 
performance in accordance with iden- 
tified goals and objectives and each 
patient's progress toward rehabilita- 
tive nursing goals; 

assurance of the delivery of nursing 
services in accordance with 
physicians' orders, nursing care plans 
and the facility's policies and proce- 
dures; 

notification of emergency physicians 
or on-call physicians; 
infection control to prevent cross- 
infection among patients and staff 
shall be in conformance with 29 CFR 
1910 (Occupational Safety and Health 
Standards) which is incorporated by 
reference including subsequent 
amendments. Emphasis shall be 
placed on compliance with 29 CFR 
1910-1030 (Bloodbourne Pathogens). 
Copies of Title 29 Part 1910 may be 
purchased from the Superintendent of 
Documents. U.S. Government Print- 
ing Office. Washington. D.C. 20402 
for $38.00 or may be purchased with 
a credit card by telephone to the 
Government Printing Office at (202) 
783-3238. Infection control shall also 
be in compliance with the Center of 
Disease Control Guidelines as pub- 
lished by the U.S. Department of 
Health and Human Services, Public 
Health Service which is incorporated 
by reference including subsequent 
amendments. Copies may be pur- 
chased from the National Technical 
Information Service. U.S. Department 
of Commerce. 5285 Port Royal Road. 
Springfield. Virginia. 22161 for 
$15.95. 

reporting of deaths; 
emergency reporting of fire, patient 
or staff accidents or incidents, or 
other emergency situations; 
use of protective devices or restraints 
to assure that each patient or resident 
is restrained in accordance with physi- 
cian orders and the facility's policies. 



and that the restrained patient or 
resident is appropriately evaluated and 
released at a minimum of every 2 
hours; 

(I) special skin care and decubiti care; 

(J) bowel and bladder training; 

(K) maintenance of proper body alignment 
and restorative nursing care; 

(L) supervision of and assisting patients 
with feeding; 

(M) intake and output observation and 
reporting for those patients whose 
condition warrants monitoring of their 
fluid balance. This will include those 
patients on intravenous fluids or tube 
feedings, and patients with kidney 
failure and temperatures elevated to 
102 degrees F. or above; 

(N) catheter care; and 

(O) procedures used in caring for patients 
in the facility. 

(2) development of written job descriptions 
for nursing personnel; 

(3) periodic assessment of the nursing 
department with identification of per- 
sonnel requirements as they relate to 
patient care needs and reporting same 
to the Administrator; 

(4) a planned orientation and continuing 
inservice education program for nursing 
employees and documentation of staff 
attendance and subject matter covered 
during inservice education programs; 

(5) obtaining and provision of appropriate 
reference materials for the nursing 
Department, which include a 
Physician's Desk Reference or compa- 
rable drug reference, policy and proce- 
dure manual, and medical dictionary for 
each nursing station; and 

(6) establishment of operational procedures 
to assure that appropriate supplies and 
equipment are available to nursing staff 
as determined by individual patient care 
needs. 

Authority G.S. 131E-104; 42 U.S.C. 1396 r (a). 

SECTION .1100 - SPECIALIZED 

REHABILITATIVE AND HABILITATIVE 

SERVICES 

.1130 ADMISSIONS TO THE HIV 
DESIGNATED UNIT 

(a) No patient shall be discriminated against in 



< 



1368 



7:14 NORTH CAROLINA REGISTER October 15, 1992 



PROPOSED RULES 



admission practices based on the diagnosis of 
Human Immunodeficiency Virus disease. 

(b) If a facility declines admission to a patient 
known to have Human Immunodeficiency Virus 
disease, the reasons for the denial shall be docu- 
mented. 

Statutory Authority- G.S. 131E-104. 

.1131 fflV DESIGNATED UNIT POLICIES 
AND PROCEDURES 

(a) In addition to .0314, in units dedicated to the 
treatment of patients with Human Immunodeficien- 
cy Virus disease, policies and procedures specific 
to the specialized needs of the patients served shall 
be developed. At a minimum they shall include 
staff training and education, and the availability of 
consultation by a physician with specialized educa- 
tion or knowledge in the management of Human 
Immunodeficiency Virus disease. 

(b) Policies and procedures for infection control 
shall be in conformance with 29 CFR 1910 
(Occupational Safety and Health Standards) which 
js incorporated by reference including subsequent 
amendments. Emphasis shall be placed on compli- 
ance with 29 CFR 1910-1030 (Bloodbourne Patho- 
gens). Copies of Title 29 Part 1910 may be 
purchased from the Superintendent of Documents. 
U.S. Government Printing Office. Washington. 
D.C. 20402 for $38.00 or may be purchased with 
a credit card by telephone to the Government 
Printing Office at (202) 783-3238. Infection 
control shall also be jn compliance with the Center 
of Disease Control Guidelines as published by the 
U.S. Department of Health and Human Services. 
Public Health Service which js incorporated by 
reference including subsequent amendments. 
Copies may be purchased from the National 
Technical Information Service. U.S. Department 
of Commerce. 5285 Port Royal Road. Springfield. 
Virginia. 22161 for $15.95. 



Statutory Authority G.S. 131E-104. 

. 1 133 SPECIAL NURSEVG REQUIREMENTS 
FOR A HIV DESIGNATED UNIT 

(a) Facilities with a Human Immunodeficiency 
Virus designated unit shall have a registered nurse 
with specialized education or knowledge in the 
care of Human Immunodeficiency Virus disease. 

(b) Nursing personnel assigned to the Human 
Immunodeficiency Virus unit shall be regularly 
assigned to the unit. Rotations are acceptable to 
alleviate staff burnout or staffing emergencies. 

Statutory Authority G.S. 131E-104. 

.1134 SPECIALIZED STAFF EDUCATION 
FOR HIV DESIGNATED UNITS 

For facilities with a Human Immunodeficiency 
Virus designated unit, an organized, documented 
program of education specific to the care of pa- 
tients infected with the Human Immunodeficiency 
Virus shall be provided and include at a minimum: 
(1) Human Immunodeficiency Virus and 
Acquired Immune Deficiency Syndrome 
disease processes; 

transmission modes, causes, and preven- 
tion of Human Immunodeficiency Virus; 
treatment of Human Immunodeficiency 
Virus and Acquired Immune Deficiency 
Syndrome; 

psycho-socio-economic needs of the 
Human Immunodeficiency Virus and 
Acquired Immune Deficiency Syndrome 
patients; 

universal precautions and infection con- 
trol; and 

policies and procedures specific to the 
Human Immunodeficiency Virus desig- 
nated unit. 



£21 
111 

£41 

151 

161 



Statutory Authority: Q_ s. 131E-104. 



Statutory Authority G. S. 131E-104. 

.1132 PHYSICIAN SERVICES IN A 
HIV DESIGNATED UNIT 

In facilities with a Human Immunodeficiency 
Virus designated unit, the facility shall insure that 
attending physicians have documented, 
pre-arranged access in person or by telephone to a 
physician with specialized education or knowledge 
in the management of Human Immunodeficiency 
Virus Disease. 



. 1 135 USE OF EWESTIGATIONAL 

DRUGS FOR HIV DESIGNATED 
UNITS 

(a) The supervision and monitoring for the 
administration of investigational drugs is the 
responsibility of the pharmacist and a licensed 
registered nurse, acting pursuant to the orders of 
a physician duly authorized to prescribe or dis- 
pense such drugs. Responsibilities shall include, 
but not be limited to. the following: 

( 1 ) insuring the provision of written guide- 
lines for any investigational drug or 
study are provided; and 



7:14 NORTH CAROLINA REGISTER October 15, 1992 



1369 



PROPOSED RULES 



(2) training and determination of staffs 
abilities regarding administration of 
drugs, policies, procedures and regula- 
tions. 
(b) The pharmacist or physician dispensing the 
investigational drug is to provide the facility with 
information regarding at least the following: 



03 

m 
m 

[4] 
(5] 



a copy of the protocol, including drug 
information; 

a copy of the patient's informed con- 
sent; 

drug storage; 
handling: 



any specific preparation and administra- 
tion instructions; 

(6) specific details for drug accountability, 
resupply and return of unused drug; 
and 

(7) a copy of the signed consent to partici- 
pate in the study. 

(c) Labeling of investigational drugs shall be in 
accordance with written guidelines of protocol and 
State and federal requirements regarding such 
drugs. Prescription labels for investigational drugs 
are to be distinguishable from other labels by an 
appropriate legend, "Investigational Drug" or "For 
Investigational Use Only". 

Statutory Authority- G.S. 131E-104. 

.1136 ADDITIONAL SOCIAL WORK 
REQUIREMENTS FOR fflV 
DESIGNATED UNITS 

]n addition to the social work services specified 
in . 1307, in facilities with a Human Immunodefi- 
ciency Virus disease designated unit, the social 
worker shall provide or arrange for the provision 
of spiritual, pastoral and grief counseling and 
bereavement services for patients and staff where 
appropriate. Support services shall be provided to 
resident families and significant others. Where 
necessary, coordination with treatment services for 
substance abuse, legal sen ices and other commu- 
nity resources shall be identified. 



Statutory Authority G.S. 



131E-104. 



Notice is hereby given in accordance with G.S. 
150B-21.2 that the Division of Facility Services 
intends to amend rule cited as 10 NCAC 3R . 2801. 



The 



proposed effective date of this action is 



January 4, 1993. 

1 he public hearing will be conducted at 2:00 
p.m. on November 18, 1992 at the Council Build- 
ing, Room 201, 701 Barbour Drive. Raleigh, NC 
27603. 

MXeason for Proposed Action: To expand the 
definition of rehabilitation beds to include nursing 
homes. 

Ksomment Procedures: Written comments should 
be submitted to Jackie Sheppard, 701 Barbour 
Drive, Raleigh. NC 27603, by November 16, 1992. 



CHAPTER 3 - FACILITY SERVICES 

SUBCHAPTER 3R - CERTIFICATE OF 
NEED REGULATIONS 

SECTION .2800 - CRITERIA AND 

STANDARDS FOR REHABILITATION 

SERVICES 

.2801 DEFINITIONS 

The definitions in this Rule will apply to all rules 
in this Section. 

(1) "Rehabilitation Facility" means a facility 
as defined in G.S. 131E-176. 

(2) "Rehabilitation" means the process to 
maintain, restore or increase the function 
of disabled individuals so that an individ- 
ual can live in the least restrictive envi- 
ronment, consistent with his or her objec- 
tive. 

(3) "Outpatient Rehabilitation Clinic" is 
defined as a program of coordinated and 
integrated outpatient services, evaluation, 
or treatment with emphasis on improving 
the functional level of the person in 
coordination with the patient's family. 

(4) "Rehabilitation Beds" means inpatient 
beds in a facility or a unit of a facility 
licensed pursuant to 10 NCAC 3C .0201- 
or 10 NCAC 3H .0200. 

(5) "Traumatic Brain Injury" is defined as an 
insult to the brain that may produce a 
diminished or altered state of conscious- 
ness which results in impairment of 
cognitive abilities or physical functioning. 
It can also result in the disturbance of 
behavioral or emotional functioning. 



1370 



7:14 NORTH CAROLINA REGISTER October 15, 1992 



PROPOSED RULES 



These impairments may be either tempo- 
rary or permanent and cause partial or 
total functional disability or psychological 
maladjustment. 

(6) "Stroke" (cerebral infarction, hemor- 
rhage) is defined as the sudden onset of a 
focal neurologic deficit due to a local 
disturbance in the blood supply to the 
brain. 

(7) "Spinal Cord Injury" is defined as an 
injury to the spinal cord that results in 
the loss of motor or sensory function. 

(8) "Pediatric Rehabilitation" is defined as 
inpatient rehabilitation services provided 
to persons 14 years of age or younger. 

Statutory- Authority G.S. 131E-177; 1 31 E-l 83(b). 

ISotice is hereby given in accordance with G.S. 
150B-21.2 that the Division of Facility Services 
intends to adopt rules cited as 10 NCAC 3R .3032, 
.3050 and amend rules cited as 10 NCAC 3R 
.3001. .3020. .3030. .3040. 

1 he proposed effective date of this action is 
January 4. 1993. 

1 he public hearing will be conducted at 2:00 
p.m. on October 30, 1992 at the Council Building, 
Room 201, 701 Barbour Drive, Raleigh, NC 
27603. 

txeason for Proposed Action: To establish rules 
for the 1993 State Medical Facilities Plan. 

Ksonvnent Procedures: Written comments should 
be submitted to Jackie Sheppard, 701 Barbour 
Drive. Raleigh, North Carolina 27603, by Novem- 
ber 16. 1992. 

CHAPTER 3 - FACILITY SERVICES 

SUBCHAPTER 3R - CERTIFICATE OF 
NEED REGULATIONS 

SECTION .3000 - STATE MEDICAL 
FACILITIES PLAN 

.3001 CERTIFICATE OF NEED REVIEW 
CATEGORIES 



The agency has established nine categories of 
facilities and services for certificate of need review 
and will determine the appropriate review category 
or categories for all applications submitted pursu- 
ant to 10 NCAC 3R .0304. For proposals which 
include more than one category, the agency wi4+ 
may require the applicant to submit separate 
applications. If it is not practical to submit sepa- 
rate applications, the agency will determine in 
which category the application will be reviewed. 
The review of an application for a certificate of 
need will commence in the next review schedule 
after the application has been determined to be 
complete. The nine categories of facilities and 
services are: 

(1) Category A. Includes proposals for acute 
health service facilities including but not 
limited to the following types of projects: 
renovation, construction, major medical 
equipment, technology and other ancil- 
lary and support equipment and services, 
except those proposals included in 
CategoriesB through I. 

(2) Category B. Includes proposals for 
long-term nursing facility beds which are 
reviewed against the State Medical Facili- 
ties Plan. 

(4) Category D. Includes proposals for new 
or expanded end-stage renal disease 
treatment facilities; and relocations of 
existing dialysis stations to another coun- 

(5) Category E. Includes proposals for new 
or expanded inpatient rehabilitation facili- 
ties and inpatient rehabilitation beds in 
other health care facilities. 

(6) Category F. Includes proposals for new 
or expanded ambulatory surgical facili- 
ties. 

(7) Category G. Includes proposals involv- 
ing cost overruns; addition of one dialy 
s i s s tation for i s olation of patients ; expan- 
sions of existing continuing care or life 
eafe facilities which are applying under 
exemptions from need projection s in the 
Pten determinations in K) NCAC 3R 
.3030 ; relocations within the same county 
of existing health service facilities.^ beds 
or dialysis stations which do not involve 
an increase in the number of health ser- 
vice facility beds; with the exception of 
r e locating dialy s i s s tation s ; reallocation 
of beds or stations ; due to withdrawal s or 
relinqui s hment s of certificate s of need; 
hospital proposals to convert acute onre 



7:14 NORTH CAROLINA REGISTER October 15, 1992 



1371 



PROPOSED RULES 



(8) 



(9! 



bed s — te — short term — nursing: proposals 
submitted by Academic Medical Center 
Teaching Hospitals designated prior to 
January 1. 1990: and any other proposal 
not included in Categories A through F, 
Category H, or Category I. 
Category H. Includes — proposals — fef 
demon s tration projects identified in thi s 
Plan: special allocation of 1CF MR beds 
•fef — Thomas — &-. — cla ss — members — only. 
Includes proposals for new continuing 
care or life e afe facilities applying for 
exemption under 10 NCAC 3R 
.3050(bi(2i and new home health agen- 
cies or offices. 



< 



Category I. Includes proposals for new 
continuing care or life care facilitie s and 
new — home — health — agencies — ©f — offices. 
Includes proposals for converting hospital 
beds to nursing care under 10 NCAC 3R 



.3050(b)(1). 
Statutory Authority G.S. 
131E-177(I); 131E-183(1>. 



1 31 E-l 76(25): 



.3020 CERTIFICATE OF NEED REVIEW SCHEDULE 

The agency has established the following schedule for review of categories and subcategories of facilities 
and services in 1992: 
(1) Category B. Subcategory Long-Term Nursing Facilities. 



County 



HSA 



CON Beginning 
Review Date 



. ■ \llcghanv 



February 1. 1992 



Cleveland 



February 1. 199 






February 1. 1992 



Burke 



Augu s t 1. 1992 



Jackson 



August 1. 1992 



Alamanc 



14 



February 1. 1992 



Ca s wcl 



14 



February 1. 1992 



Rockingham 



H 



February I. 1992 



Devi 



H 



Augu s t 1. 1992 



Yadkin 



H 



August 1. 1992 



Mecklenburg 



H4 



March 1. 199: 



Stanlv 



144 



September 1. 1992 



1372 



7:14 SORTH CAROLINA REGISTER October 15, 1992 



PROPOSED RULES 



Chatham 



Person 



Wake 



Warren 



Cumberland 



Moore 



Robe s on 



Scotland 



Bladen 



New Hanover 



Beaufort 



Nesh- 



Northompton 



Craven 



Hertford 



Pamlieo 



Wilson 



Macon 



Mitchel 



Johnston 



Harnett 



Wayne 



Duplin 



Washington 



Wilkes 



W 



IV 



w 



FV 



v+ 



¥4 



V4 



V4 



VI 



V4 



V4 



[V 



V 



VI 



VI 



VI 



March 1, 1992 



March 1 , -W2 1993 



September I. 1992 



September 1. 1992 



April 1. 1992 



April 1, 1992 



April 1. 1992 



April 1, 1992 



October 1. 1992 



October 1. 1992 



April 1. 1992 



April 1. 1992 



April 1. 1992 



October 1. 1992 



October 1 
April 1. 1993 



993 



October 1. 1992 



October 1. 1992 



August 1. 1993 



August L 1993 



March 1, 1993 



October 1, 1993 



April 



1993 



October 



1993 



October 1. 1993 



February K 1993 



(2) Category C. Subcategory Intermediate Care Facilities for Mentally Retarded. 



County 



HSA 



CON Beginning 
Review Date 



Jackson. Haywood. Macon. Cherokee. Clay. 
Graham. Swain 



D e cember 1. 1992 



Transylvania. Hender s on 



December 1. 1992 



Caldwe l l. Burk e . A l exander. McDowell 



December 1. 1992 



7:14 NORTH CAROLINA REGISTER October IS, 1992 



1373 



PROPOSED RULES 



Rutherford, Polk 



Juno 



t^93 



Cleveland 



ha 



+993 



Mecklenburg 



III 



May 1 , 4993 1993 



Surry, Yndkin 



H 



June 1, 1992 



For s yth. Stokes 



14 



June 1, 1992 



Alamance. Ca s wel 



44 



November 



1993 



Orange. Person. Chatham 



4V 



May 1. 1992 



Vance. Granville. Franklin. Warren 



W 



November 



W93 



Davidson 



44 



November 



4993 



Cumberland 



December 



M?93 



Johnston 



4V 



May 1. 1992 



Wake 



4V 



November 



1993 



Randolph 



44 



November 1, 1992 



New Hanover. Brunswick, Pender 



B- 



coomBcr 



1993 



Onslow 



V4 



Juno 1. 1992 



Wil s on, Greene 



V4 



k993 



Edgecombe, Na s h 



V4 



June 1, 1992 



Hertford. Bertie, Gates, Northampton 



V4 



December 1. 1992 



Pasquotank. Chowan, Perquimans, Camden, 
Dare, Currituck 



V4 



December 1, 1992 



Buncombe. Madison. Mitchell. Yancey 



June 1. 1993 



Moore. Hoke. Richmond, Montgomery, 
Anson 



V 



June L 1993 



Craven. Jones. Pamlico, Carteret 



VI 



June 1. 1993 



Pitt 



VI 



June 



1993 



Beaufort. Washington, Tyrrell. Hyde. Martin 



V] 



December 1. 1993 



(3) Category D. Subcategory End Stage Renal Disease Treatment Facilitie s . Dialysis Stations. 
Dialysis station review shall be conducted under the provisions of NCAC 3R .3032. 



Counties 



uc,\ 



CON Beginning 
Review Date 



Cherokee. Clay. Graham. Jackson. Macon. 
Swain 



April 1. 1992 



Buncombe. Haywood. Madison, Mitchell, 
Yanccv 



October 1, 1992 



1374 



7:14 NORTH CAROLINA REGISTER October 15, 1992 



PROPOSED RULES 



Henderson, Polk. Tran s ylvania 



October 1, 1992 



Ashe, Avery, Caldwell, Watauga, Wilkes 



April 1, 1992 



Burke, McDowell 



October 



W93 



Rutherford 



April 1, 1992 



Alexander. Catawba 



October 



W93 



Alleghany, Stokes, Surry 



H 



October 1, 1992 



David s on 



44 



October 1, 1992 



Caswell, Rockingham 



44 



October 1, 1992 



Randolph 



14 



April 1, 1992 



Alamance 



14 



April 1, 1992 



Ga s ton 



444 



May 1, 1992 



Lincoln 



444 



May 1, 1992 



Rowan 



444 



October 1, 1992 



Cabarrus 



444 



October 1, 1992 



Montgomery. Stanly 



444 



October 1, 1992 



Chatham, Lee 



W 



October 1. 1992 



Person 



4V 



May 1, 1992 



W«4« 



W 



October 



HW3 



John s ton 



W 



October 



W92 



Franklin, Vance, Warren 



W 



May 1, 1992 



Anson 



Augu s t 1, 1992 



Cumberland, Hoke 



April 1, 1992 



Harnett 



April 1, 1992 



Sampson 



April 1, 1992 



Bladen 



Augu s t 1, 1992 



Robe s on 



Augu s t 1, 1992 



Pender 



August 1, 1992 



Brun s wick 



Augu s t 1, 1992 



Duplin 



V4 



April 1, 1992 



Wayne 



V4 



April 1, 1992 



7:14 NORTH CAROLINA REGISTER October 15, 1992 



1375 



PROPOSED RULES 



Edgecombe. Nash 



¥4 



April 1, 1992 



Gates, Halifax, Hertford, Northampton 



¥4 



August 1, 1992 



Bertie, Washington 



¥4 



August 1, 1992 



Martin 



V4 



April 1, 1992 



Greene, Pitt 



¥4 



August 1, 1992 



Beaufort 



¥4 



Augu s t 1, 1992 



Carteret, Craven, Jones. Pamlico 



¥4 



Augu s t 1, 1992 



Onslow 



¥4 



August 1, 1992 



(4) Category I. Subcategory Home Health Agencies. 



County 



HSA 



CON Beginning 
Review Date 



Mecklenburg 



444 



February 1. 1992 



Randolph 



44 



April I. 1992 



Wilk es 



April 1, 1992 



Davidson 



April 1, 1993 



Forsyth 



April L 1993 



Guilford 



October 1, 1993 



Dare 



VI 



February 



1993 



(5) All categories for which review dates are not specified in Subparagraph (1), (2), (3), (4) of 
this Rule. 



REVIEW 
PERIOD 


HSA I 


HSA II 


HSA III 


HSA IV 


HSA V 


HSA VI 


January 1 


-- 


— 


- 


-- 


-- 


— 


February 1 


B. G. I 


B, G, I 


A. G, E, 


A, G, E, 

hL I 


A, G, E. 

±L I 


A, G, E, 


March 1 


- 


- 


B, G 


B, G 


— 


— 


April 1 


a, ©. g, 

E, H, 4 


A. ©, G. 
E, FL4 


-- 


-- 


B, G, © 


B, G, B 


May 1 


- 


-- 


C. G, F. © 


C, G, F. © 


-- 


-- 



1376 



7:14 NORTH CAROLINA REGISTER October 15, 1992 



PROPOSED RULES 



June 1 


A. C, G, 
F, D 


A, C. G, 
F, D 


D 


D 


A. C, G, 
F. D 


A, C, G, 
F, D 


July 1 


- 


- 


A, G, I, H 


A, G, 4, H 


-- 


-- 


August 1 


B. G 


B, G 


-- 


-- 


©, G, E, 
J, H 


©, G, E, 
1, H 


September 1 


- 


- 


B, G, E 


B, G, E 


-- 


- 


October 1 


»r G, E, 
H,4 


Dt g, e, 
H, 1 


ih-9 


ih-9 


B. G, H 


B, G, H 


November 1 


-- 


A, C, G. F 


A, C, G. F 


A, C, G. F 


- 


- 


December 1 


A, C. EX 
G, F 


D 


D 


D 


A, C, EX. 
G, F 


a, c, rx 

G, F 



Statutory Authority G.S. 1 31 E-l 76(25); 131E-177(1); 131E-183(1). 

.3030 FACILITY AND SERVICE NEED DETERMINATIONS 

Facility and services allocation s need determinations are shown in Items (1) - (8) of this Rule. The 
allocations are subject to reductions based on certificates of need awarded since November 15, 1991. 
after September 17, 1992: 

(1) Category A. Acute Health Service Facilities. 



Morchead Memorial Hospital Service System HSA II 16 beds 

HSA VI 17 bed s 



Halifax Memorial Ho s pital Service System 



UNC Hospital Service System 

C. J. Harris Community Hospital System 



HSA IV 



15 beds (University 

s tudent s ) 

1 5 beds 



HSA I 



(2) Category B. Long-Term Nursing Facility Beds. 



County 


HSA 


Number of 

Nursing 

Beds Allocated 

Needed 


Alleghany 




30 


Cleveland 




60 


p n 1 u 

1 Ull^ 




40 


Bwke 




60 


Jackson 




30 


Alamance 


H 


60 


Caswell 


14 


30 


Rockingham 


H 


80 


Davie 


14 


90 


Yadkin 


14 


60 



7:14 NORTH CAROLINA REGISTER October 15, 1992 



1377 



PROPOSED RULES 



Mecklenburg 


m 


4-QU 


C*—1.. 


w 


60 




Chatham 


IV 


69 


Person 


IV 


39 30 


Wske 


IV 


70 


Warren 


FV 


30 


Cumberland 


V 


90 


Moore 


V 


60 


Robeson 


V 


4 


Seotland 


V 


30 


Bladen 


V 


40 


New Hanover 


V 


i nn 


Beaufort 


V4 


40 


Nas4> 


Yi 


60 


Northampton 


V4 


30 


Craven 


Vi 


60 


Hertford 


VI 


20 


Pamlico 


V4 


30 


Wilson 


¥i 


60 


Macon 


I 


30 


Mitchell 


I 


20 


Johnston 


IY 


50 


Harnett 


V 


90 


Duplin 


Yi 


30 


Washington 


Yl 


10 


Wayne 


YJ 


50 


Wilkes 


I 


70 



(3) Category' C. 
(a) Psychiatric Facility Beds. ]t is determined that there is no need for additional beds and 

no rev iews are scheduled. 



Countie s 






-9- 



Adult 



Child/Adolescent 



137 X 



7:14 NORTH CAROLINA REGISTER October 15, 1992 



PROPOSED RULES 



Caldwell, Burke. Alexander- 
McDowel l 



jaston. Lincoln 



Rowan. Iredell. Davie 



Stanly. Cabarrus. Union 



Surrv. Yadkin 



Rockingham 



Vance. Granville. Franklin. 
Warren 



Davidson 



Lee. Harnett 



Wake 



Craven. Jones. Pamlico. 
Carteret 



Lenoir 



Beaufort. Wa s hington. Tyrrell. 
Hyde. Martin 



444 



444 



444 



44 



44 



FV 



44 



4V 



V4 



V4 



V4 



44 



i-9 



56 



54 



i€ 



44 



444 



44 



444 



4^ 



(b) Intermediate Care Facilities for Mentally Retarded Beds. 



45 



444 



Counties 



HSA 



Allocation 
Need Determina- 
tion 
Child Adult 



Jackson. Haywood. Macon. Cherokee. 
Clay. Graham. Swain 



45 



Transylvania. Henderson 



45 



GfM\ 



Burke. Alexander. McDowel 



Rutherford. Polk 



Cleveland 



18 



Mecklenburg 



111 



6 48 24 



Surry. Yadkin 



44 



Forsyth. Stokes 



44 



45 



Alamance. Cn s wcl 



44 



18 



Orange. Per s on. Chatham 



44- 



45 



Vance. Granville, Franklin. Warren 



44 



David s on 



44 



7:14 NORTH CAROLINA REGISTER October 15, 1992 



1379 



PROPOSED RULES 



Cumberland 


V 


J-8 


Johnston 


W 


6 


Wake 


fV 


43 


Randolph 


H 


+3 


New Hanover. Brunswick. Ponder 


V 


6 


Onslow 


VI 


+8 


Wilson. Greene 


V4 


6 


Edgecombe. Nash 


¥i 


6 


Hertford. Bertie. Gates. Northampton 


\4 


6 


Pasquotank. Chowan. Perquimans. 
Camden. Dare. Currituck 


VI 


6 


Buncombe, Madison, Mitchell. Yancev 


I 


6 




6 


Moore. Hoke. Richmond. Montgomery, 


y 


18 







Anson 


Craven. Jones. Pamlico. Carteret 


YJ 


6 







Pitt 


YJ 


6 







Beaufort. Washington. Tvrrell. Hyde, 


YJ 


6 




18 


Martin 



t 



I 



(c) Substance Abuse and Chemical Dependency Facility Beds. No allocation . It is determined 
that there is no need for additional beds and no reviews are scheduled. 
(4) Category D. End Stage Renal Disease Treatment Facilities. Need for end-stage renal 
dialysis facilities or stations is determined as is provided in J_0 NCAC 3R .3032. 



Countk 



UC A 

1 1 ■ >.' \ 



Station Allocation s 
If All Pending 
Are Approved 



Cherokee. Clay, Graham, Jackson, 
— Macon, Swain 



Buncombe, Haywood, Madi s on, 
Mitchell, Yanev 



-14 



Hender s on. Polk, Transylvania 



A s he. Avery. Caldwell. Watauga. 
Wilkes 



Burke. MoDowi 



Rutherford 



Al e xander. Catawba 



Alleghany. Stokes. Surry 



H 



1380 



7:14 \ORTH CAROLINA REGISTER October 15, 1992 



PROPOSED RULES 



Davidson 


a 


a 


Caswell, Rockingham 


u 


7 




4J 


i 




Alamance 


H 


6 


Gaston 


4« 


6 


Lincoln 


44J 


7 


Rowan 


441 


4 


Cabarrus 


4H 


§ 


Montgomery, Stanly 


444 


$ 


Chatham. Lee 


W 


6 


Person 


W 


8 


Wake 


w 


43 


Johnston 


w 


7 


Franklin, Vance, Warren 


w 


49 


Anson 


V 


3 


Cumberland. Hoke 


V 


47 


Harnett 


V 


3 


Sampson 


V 


4 


Bladen 


V 


7 


Robeson 


V 


4 


Pender 


V 


9 


Brunswick 


V 


49 




V4 


3 






V4 


4 




Edgecombe, Nash 


V4 


44 




¥4 


49 




Bertie, Washington 


Vt 


9 


Martin 


V4 


8 


Greene, Pitt 


¥4 


3 


Beaufort 


¥4 


9 


Carteret, Craven, Jones, Pamlico 


¥4 


44 


Onslow 


V4 


6 



Category E. Inpatient Rehabilitation Facility Beds. 



7:14 NORTH CAROLINA REGISTER October 15, 1992 



1381 



PROPOSED RULES 



HSA 



Beds 



I 


300 


II 


40 


III 


20 


IV 


F50 


V 


33 21 


VI 


?& 29 



(6) Category F. Ambulatory Surgery Facilities. It is determined that there is no need for 
additional facilities and no reviews are scheduled. 

Any area's need is determined by applying the following formula: 



1990 Amb. Surg. Ca s e s in 



199 4 Pop. 



Proposed Amb. Surg. 



the Proposed Amb. Surg. Area — or 50.9 — X of Area to 

Area Population (1000' s ) be Served 



Cases in Propo s ed 
Service Area 



(1000's) 



Projected Ambulatory Surgical 



Ambulatory Surgery 
Rooms Needed in 



Cases in Propo s ed Service Area 



rm- 



600 (cases per room per year) 



Propo s ed Service Area 



Thi s methodology i s not applicable to CON ambulatory s urgical applications which conform to 10 
NCAC 3R .21 15(c)(2) relative to access to medically underserved persons. 



(3) Category H. 

{*) B rain Injury Demonstration — Long Term Nursing Facility Beds. 

HSA I and III 



&ft HSA II. IV and V, 



20 beds 



20 beds 



(less Bladen, Brun s wick. Columbus. 

New Hanover, Pender and Samp s on countie s .) 

(iii) HSA VI 

(plus Bladen. Brun s wick. Columbu s . 

New Hanover, Pender and Sampson counties.) 

<+H Demonstration Project, Medically Complex Children — Long Term Nur s ing Beds. 

All HSA s 



(8) (^Category I. New Home Health Agencies. 



20 beds 



10 bed s 



fe) Thoma s S. cla ss — Intermediate Care Facility bed s for Mentally Retarded. 

All HSA s 71 bed s 



County 


HSA 


Number of 
Agencies Allocated 
or Offices Needed 


Mecklenburg 


W4 


+ 


Randolph 


a 


2 


Wilkes 


i 


+ 


Davidson 


n 


I 


Forsyth 


u 


T 


Guilford 


U 


2 



1382 



7:14 NORTH CAROLINA REGISTER October 15, 1992 



PROPOSED RULES 



Dare 


VI 


1 



(8) Open heart surgery operating rooms - It is determined that there is no need for additional rooms and 
no reviews are scheduled. 

(9) Solid organ transplant and allogeneic bone marrow transplant programs - U js determined that these 
programs are needed only in academic medical center teaching hospitals as defined under 10 NCAC 
3R .3050(a)(3). 

(10) Gamma knife - It is determined that there js no need for gamma knife stereotactic radiosurgery 
services in any facility and no reviews are scheduled. 

(11) Positron Emission Tomography - It is determined that there is no need for additional cyclotron-based 
positron emission tomography capacity in any facility and no reviews are scheduled. 

Statutory Authority G.S. 131E-176(25); 131E-177Q); 131 E-l 83(1). 

.3032 DIALYSIS STATION NEED DETERMINATION 

(a) The Medical Facilities Planning Section (MFPS) shall determine need for dialysis stations and facilities 
two times each calendar year, and shall make a report of such determinations available to aU who request it 
This report shall be called the MFPS Semiannual Dialysis Report (SDR). Data to be used for such 
determinations, and their sources, are as follows: 

(1) Numbers of dialysis patients, by type, county and facility, from the Southeastern Kidney Council. 
Inc. (SEKC) and the Mid-Atlantic Renal Coalition. Inc. 

(2) Certificate of need decisions, decisions appealed, appeals settled and awards, from the Certificate 
of Need Section, DFS. 

(3) Facilities certified for participation jn Medicare, from the Certification Section. DFS. 

(4) Need determinations for which certificate of need decisions have not been made, from MFPS 
records. 

Need determinations in this report shall be an integral part of the State Medical Facilities Plan, as provided 
in G.S. 131E-I83. 

(b) Need for dialysis stations and facilities shall be determined as follows: 

(1) County Need 

(A) The average annual rate (%) of change in total number of dialysis patients resident in each county 
from the end of 1988 to the end of 1992 js multiplied by the county's 1992 year end total number 
of patients in the MFPS Semiannual Dialysis Report (SDR), and the product js added to each 
county's most recent total number of patients reported jn the SDR. The sum js the county's 
projected total 1993 patients. 

(B) The percent of each county's total patients who were home dialysis patients at the end of 1992 
js multiplied by the county's projected total 1993 patients, and the product js subtracted from the 
county's projected total 1993 patients. The remainder js the county's projected 1993 in-center 
dialysis patients. 

(C) The projected number of each county's 1993 in-center patients js divided by 3.2. The dividend 
js the projection of the county's 1993 in-center dialysis stations. 

(D) From each county's projected number of 1993 in-center stations is subtracted the county's number 
of stations certified for Medicare. CON-approved and awaiting certification, awaiting resolution 
of CON appeals, and the number represented by need determinations jn previous State Medical 
Facilities Plans for which CON decisions have not been made. The remainder js tlie county's 
1993 station need projection. 

(E) If a county's 1993 station need projection is seven or greater and the SDR shows that utilization 
of each dialysis facility in the county js 80% or greater, the 1993 station need determination is 
the same as the 1993 station need projection. 

(2) Facility Need. A dialysis facility located in a county whose unmet need jn the reference 
Semiannual Dialysis Report (SDR) js less than 7 stations js determined to need additional stations 
to the extent that: 

(A) Its utilization, reported jn the SDR, js greater than 3.2 patients per station. 

(B) Such need, calculated as follows, js reported jn an application for a certificate of need: 



7:14 NORTH CAROLINA REGISTER October 15, 1992 1383 



PROPOSED RULES 



(i) The facility's number of in-center patients on December 31, 1991 is subtracted from the 
number of such patients on December 31 , 1992 and the remainder js divided by the number 
of in-center patients on December 3 1 , 1991 . 
(ii) The dividend from (2)(B)(i) is divided by 12. 
(iii) The dividend from (2)(B)(ii) is multiplied by the number of months from the most recent 

month reported jn the SDR until the end of calendar 1 993 . 
(iv) The product from (2)(B)(iii) is multiplied by the number of the facility's in-center patients 
reported jn the SDR and that product is added to such reported number of in-center patients, 
(v) The sum from (2)(B)(iv) is divided by 3.2, and from the dividend js subtracted the facility's 
current number of certified and pending stations as recorded in the SDR. The remainder is 
the number of stations needed. 
(C) The facility may apply to expand to meet the need established jn (2)(B)(v). ug to a maximum of 
seven stations. 
The schedule for publication of the Medical Facilities Planning Section's Semiannual Dialysis Report (SDR) 
and for receipt of certificate of need applications based on each issue of this report in 1993 shall be as follows: 

Data for Receipt of Publication Receipt of Beginning 

Period Ending SEKC Report of SDR CON Applications Review Dates 

Dec. 31, 1992 Feb. 28, 1993 March 19. 1993 May 14, 1993 June 1, 1993 

June 30. 1993 Aug. 31, 1993 Sept. 20. 1993 Nov. 15, 1993 Dec. 1, 1993 

An application for a certificate of need pursuant to this Rule shall be accepted only if it demonstrates a need 
by utilizing one of the methods of determining need outlined jn this Rule. 

Statutory Authority* G.S. 1 31 E-l 76(25); 131E-177(1); 131E-183(1). 

.3040 REALLOCATIONS, ADJUSTMENTS. AND REVIEW PERIODS 

(a) Reallocations re s ulting from withdrawals, relinquishments, or no applications. 
( 1 ) Appeals of Certificate of Need Decisions on Applications. Need determinations of beds or services 
for which the CON Section decision has been appealed shall not be reallocated until the appeal js 
resolved. 

(A) Appeals Resolved Prior to September 17: If an appeal is resolved jn the calendar year prior to 
September 17. the beds or services shall not be reallocated by the CON Section: rather the 
Medical Facilities Planning Section shall make the necessary changes in the next amendment to 
NCAC 3R .3030 

(B) Appeals Resolved On Or After September 17: If the appeal is resolved on or after September 
17 in the calendar year, the beds or services shall be made available for a review period to be 
determined by the CON Section, but beginning no earlier than 60 days from the date that the 
appeal is resolved. Notice shall be given by the Certificate of Need Section no less than 45 days 
prior to the due date for receipt of new applications. 

Dialysis stations that are withdrawn, relinquished, not applied for or decertified shall not be 
reallocated. Instead, any necessary redetermination of need shall be made in the next scheduled 
publication of the Semiannual Dialysis Report. allocations shall be made only to the extent that J_0 
NCAC 3R . 3030 determines that a need exists after the inventory is revised and the need 
determination is recalculated. Beds or services which are reallocated once in accordance with this 
policy shall not be reallocated again. Rather, the Medical Facilities Planning Section shall make 
any necessary' changes jn tlie next published amendment to JO NCAC 3_R .3030. 
f-h (2] Withdrawals and Relinquishments. An allocation A need determination for which a certificate 
of need is issued, but is subsequently withdrawn or relinquished, and nn allocation for which no 
certificate of need application is received, is available for a review period to be determined by the 
Certificate of Need Section, but beginning no earlier than 60 days from: 
(A) the last date on which the holder of a certificate of need could have appealed a an appeal of tlie 

notice of intent to withdraw h4s tlie certificate could be filed if he doe s not in fact if no appeal 

is filed. 



1384 7:14 NORTH CAROLINA REGISTER October 15, 1992 



PROPOSED RULES 



(B) the date on which an appeal of the withdrawal is finally resolved against the holder, or 

(C) the date that the Certificate of Need Section receives notice from the holder of the certificate of 

need notice that the certificate has been voluntarily relinquished^-©^ 
{©) — for allocations for which no application was received, the last due date on which applications 
could have been received. 
Notice of the reallocation and the scheduled review period for which applications shall be submitted will the 
reallocated services or beds shall be given no less than 45 days prior to the due date for receipt submittal of 
the new applications. 

{3} Reallocation of s ervice capacity represented by a relinqui s hed or withdrawn certificate of need or 

by an allocation for which no application wa s received will occur only to the extent of the need 
indicated for the same service contained in thi s s ection in effect at the time of such determination, 
as adjusted through the provisions of .30 4 0(b). — The effective date of the determination of the 
availability of capacity for reallocation i s the date designated in (a) (1) (A), (B), (C) or (D) of thi s 
Ruler 

f3} Reallocation s made available through thi s Rule for which no application i s received for the revi e w 

period designated in iSubparagraph (a)(1) of this Rule — will not be reallocated again. 
fb) — Need adjustments for prior year certificate of need award s . — Need determinations in this section are 
based on an inventory of facilitie s that existed and of certificate s of need awarded prior to preparation of thi s 
Rule and will be adju s ted by the amount of any s ub s equent certificate of need award s . — A record of capacity 
remaining available for allocation will be maintained by the Medical Facilitie s Planning Section, ba s ed upon 
information supplied by the Certificate of Need Section. — For information about the availability of these 
allocations write Medical Facilities Planning Section, Division of Facility Services, P. O. Box 29530, Raleigh, 
NC 27626 0530, or call 919 733 4 130. 

(c) Availability of Allocations. Single month review s pecific allocation s s pecified in 10 NCAC 3R. 3030(2), 
(3) ii, ( 4 ), and (10) are available only for the review cycle s s pecified in 10 NCAC 3R.3020(1) (2) (3) and ( 4 ) 
and in the next occurring scheduled cert i ficate of need review cycle applicable to the same facility s ervice 
category for the health s ervice area in which the county or countie s arc located, a s specified in 10 NCAC 
3R. 3020(5). — Allocations which are not s ingle month review specific are available only for the certificate of 
need review cycles specified in 10 NCAC 3R .3020(5). 

(3) Need Determinations for which No Applications are Received 

(A) Services or Beds with Scheduled Review Before September 17: Need determinations, or portions 
of such need, for services or beds in this category include long-term nursing care beds, home 
health agencies or offices, dialysis stations, and beds in intermediate care facilities for the 
mentally retarded (1CF/MR) with the exception of 1CF/MR allocations with a scheduled review 
that begins after September 17. The Certificate of Need Section shall not reallocate the services 
or beds in this category for which no applications were received, because the Medical Facilities 
Planning Section will have sufficient time to make any necessary changes in the determinations 
of need for these services or beds i_n the next annual amendment to JO NCAC 3R .3030. 

(B) Services or Beds with Two Scheduled Review Periods and 1CF/MR Fall Review. Need 
determinations for services or beds jn this category include acute care beds, rehabilitation beds, 
ambulatory surgery operating rooms, medical technology, psychiatric beds, substance abuse beds, 
and 1CF/MR beds for which review commences after September 17. A need determination m 
this category for which no application has been received by the last due date for submittal of 
applications shall be available to be applied for in the second Category G review period in the 
next calendar year for the applicable HSA. Notice of the scheduled review period for the 
reallocated beds or services shall be given by the Certificate of Need Section no less than 45 days 
prior to the due date for submittal of new applications. 

(4) Need Determinations not Awarded because Application Disapproved. 

(A) Disapproval prior to September 17: Need determinations or portions of such need for which 
applications were submitted but disapproved by the Certificate of Need Section before September 
17, shall not be reallocated by the Certificate of Need Section. Instead the Medical Facilities 
Planning Section shall make the necessary changes in the next annual amendment to JO NCAC 
3R .3030 if no appeal ]s filed. 

(B) Disapproval on or After September 17: Need determinations or portions of such need for which 
applications were submitted but disapproved by the Certificate of Need Section on or after 



7:14 NORTH CAROLINA REGISTER October 15, 1992 1385 



PROPOSED RULES 



September 17, shall be reallocated by the Certificate of Need Section. A need in this category 
shall be available for a review period to be determined by the Certificate of Need Section but 
beginning no earlier than 95 days from the date the application was disapproved, if no appeal ]s 
filed. Notice of the scheduled review period for the reallocation shall be mailed no less than 80 
days prior to the due date for submittal of the new applications. 
(b) CHANGES IN NEED DETERMINATIONS. Need determinations in 10 NCAC 3R .3030 and .3032 
shall be revised after the effective date of this Rule as necessary to reflect: 

( 1 ) dialysis stations decertified after September 17, 1992 

(2) health service facilities or beds delicensed after September 17. 1992 

(3) psychiatric beds licensed pursuant to G . S . 1 3 1 E- 1 84(c). 

(4) errors in inventories on which need determinations in K) NCAC 3_R .3030 are based. 

(c) REVIEW PERIODS. Determinations of need for nursing facility beds, home health agencies or offices, 
ICF/MR beds are available to be applied for only once during the calendar year. The review cycles for these 
allocations are specified m JO NCAC 3_R .3020 ( 1 )-(4). All other allocations are available for the certificate 
of need review cycles specified in 10 NCAC 3R . 3020 (5). 

Statutory Authority G.S. 1 31 E-l 76(25); 131E-177(1); 131E-183(1). 

.3050 NEED DETERMINATION PRINCIPLES 

(a) ACUTE CARE FACILITIES AND SERVICES 

( 1 ) Use of Licensed Bed Capacity Data for Planning Purposes. For planning purposes the number of 
licensed beds shall be determined by the Division of Facility Services in accordance with standards 
found in 10 NCAC 3C .1510 - Bed Capacity. 

(2) Utilization of Acute Care Hospital Bed Capacity. Conversion of underutilized hospital space to 
other needed purposes shall be considered to be more cost-efficient than new construction, unless 
shown otherwise. Utilization targets are shown in JO NCAC 3R .3050(a)(4). 

(3) Exemption from Plan Provisions for Certain Academic Medical Center Teaching Hospital Projects. 
Projects for which certificates of need are sought by academic medical center teaching hospitals 
may qualify for exemption from provisions of JO NCAC 3R .3030. The State Medical Facilities 
Planning Section shall designate as an Academic Medical Center Teaching Hospital any facility 
whose application for such designation demonstrates the following characteristics of the hospital: 

(A) Serves as a primary teaching site for a school of medicine and at least one other health 
professional school, providing undergraduate, graduate and postgraduate education. 

(B) Houses extensive basic medical science and clinical research programs, patients and e quipment. 

(C) Serves the treatment needs of patients from a broad geographic area through multiple medical 
specialties. 

Exemption from the provisions of J_0 NCAC 3R .3030 shall be granted to projects submitted by 
Academic Medical Center Teaching Hospitals designated prior to January J_^ 1990 which projects 
comply with one of the following conditions: 

(i) Necessary to complement a specified and approved expansion of the number or types of 
students, residents or faculty, as certified by the head of the relevant associated professional 
school; or 
(ii) Necessary to accommodate patients, staff or equipment for a specified and approved 
expansion of research activities, as certified by the head of the entity sponsoring the research: 
or 
(iii) Necessary' to accommodate changes in requirements of specialty education accrediting bodies, 
as evidenced by copies of documents issued by such bodies. 

(4) Reconversion to Acute Care. Facilities redistributing beds from acute care bed capacity to 
rehabilitation or psychiatric use shall obtain a certi ficate oj need to convert this capacity back 
to acute care. Application for such reconversion to acute care of beds converted to psychiatry or 
rehabilitation shall be evaluated against the hospital's utilization in relation to target occupancies 
used in determining need shown in JO NCAC 3R .3030 without regard to the acute care bed need 
shown in the Rule. These target occupancies are: 

Licensed Bed Capacity Percent Occupancy 

1 - 49 65 



1386 7:14 NORTH CAROLINA REGISTER October 15, 1992 



PROPOSED RULES 



. 



5Q; 99 70 

100; 199 75 

200 z 699 80 

700 + 81.5 

(5) Multi-Specialty Ambulatory Surgery. After applying other required criteria, when superiority 
among two or more competing ambulatory surgical facility certificate of need applications is 
uncertain, favorable consideration shall be given to multi-specialty facilities over single specialty 
facilities in areas where need is demonstrated in JO NCAC 3R .3030. A multi-specialty ambulatory 
surgical facility means a facility providing services in at least three of the following areas; 
gynecology, otolaryngology, plastic surgery, general surgery, ophthalmology, orthopedics and oral 
surgery. A new multi-specialty ambulatory surgical facility shall have a minimum of two operating 
rooms, and no fewer than two operating rooms with general anesthesia capabilities. 

(6) Expansion of the Rehabilitation System. After applying other required criteria, when superiority 
among two or more competing rehabilitation facility certificate of need applications is uncertain, 
favorable consideration shall be given to applicants proposing establishment of small inpatient 
rehabilitation programs so as to make these services available to the underserved populations. 

(7) Geographic Distribution of Inpatient Rehabilitation Beds. After applying other required criteria, 
when superiority among two or more competing rehabilitation facility certificate of need 
applications js uncertain, favorable consideration shall be given to proposals that minimize the 
distance that patients must travel to obtain inpatient rehabilitation services. 

(8) Ambulatory Surgery Need Determination Exclusion. The determination of need for ambulatory 
surgical operating rooms defined in NCAC 3R .3030(6) shall not be considered in the review of 
an application for a certificate of need to convert existing operating rooms to a freestanding 
ambulatory surgical facility, if submitted by a hospital designated as a Rural Primary Care Hospital 
by the N^ C. Office of Rural Health Services pursuant to section 1820(f) of the Social Security Act. 

lb) LONG-TERM CARE FACILITIES AND SERVICES. 
(1) Provision of Hospital-Based Long-Term Nursing Care. A certificate of need may be issued to a 
hospital which is licensed under G.S. 131 E, Article 5^ and which meets the conditions set forth 
below and other relevant rules, to convert up to ten beds from its licensed acute care bed capacity 
for use as hospital-based long-term nursing care beds without regard to determinations of need in 
JO NCAC 3R .3030 if the hospital: 

(A) is located in a county which was designated as non-metropolitan by the U. S^ Office of 
Management and Budget on January J^ 1 993 ; and 

(B) on January 1, 1993, had a licensed acute care bed capacity of 150 beds or less. The certificate 
of need shall remain m force as long as the Department of Human Resources determines that the 
hospital js meeting the conditions outlined in this Rule. "Hospital-based long-term nursing care" 
is defined as long-term nursing care provided to a patient who has been directly discharged from 
an acute care bed and cannot be immediately placed fn a licensed nursing facility because of the 
unavailability of a bed appropriate for the individual's needs. Determination of the patient's need 
for hospital-based long-term nursing care shall be made in accordance with existing criteria and 
procedures for determining need for long-term nursing care administered by the Division of 
Medical Assistance and the Medicare program. Beds developed under this Rule are intended to 
provide placement for residents only when placement in other long-term care beds is unavailable 
in the geographic area. Hospitals which develop beds under this Rule shall discharge patients to 
other nursing facilities with available beds in the geographic area as soon as possible where 
appropriate and permissible under applicable law. Necessary documentation including copies of 
physician referral forms (FL 2} on all patients m hospital-based nursing units shall be made 
available for review upon request by duly authorized representatives of licensed nursing facilities. 
For purposes of this Rule, beds jn hospital-based long-term nursing care shall be certified as a 
"distinct part" as defined by the Health Care Financing Administration. Beds jn a "distinct part" 
shall be converted from the existing licensed bed capacity of the hospital and shall not be 
reconverted to any other category or type of bed without a certificate of need. An application 
for a certificate of need for reconverting beds to acute care shall be evaluated against the 
hospital's service needs utilizing target occupancies shown in JO NCAC 3R .3050(a)(4), without 
regard to the acute care bed need shown in JO NCAC 3R .3030. A certificate of need issued for 



7:14 NORTH CAROLINA REGISTER October 15, 1992 US7 



PROPOSED RILES 



a hospital-based long-term nursing care unit shall remain in force as long as the following 
conditions are met: 
(i) the beds shall be certified for participation in the Title XVI II (Medicare) and Title XIX 

i Medicaid) Programs: 
(iii the hospital discharges residents to other nursing facilities j_n the geographic area with 

available beds when such discharge is appropriate and permissible under applicable law: 
(iii) patients admitted shall have been acutely i_H inpatients of an acute hospital or its satellites 
immediately preceding placement in the unit. 
The granting of beds for hospital-based long-term nursing care shall not allow 1 a hospital to 
convert additional beds without first obtaining a certificate of need. Where any hospital, or the 
parent corporation or entity of such hospital. any subsidiary corporation or entity of such hospital. 
or any corporation or entity related to or affiliated with such hospital by common ownership, 
control or management: 
i.I) applies for and receives a certificate of need for long-term care bed need determinations 

in 10 NCAC 3R .3030; or 
(Hi currently has nursing home beds licensed as a part of the hospital under G.S. 131 E. 

Article 5; or 

ill! i currently operates long-term care beds under the Federal Swing Bed Program (P.L. 

96-499). such hospital shall not be eligible to apply for a certificate of need for 

hospital-based long-term care nursing beds under this Rule. Hospitals designated by the 

State of North Carolina as Rural Primary Care Hospitals pursuant to section 1820(f) of the 

Social Security Act, as amended, which have not been allocated long-term care beds under 

pro\ isions of d . S . 13 1 E 175-190. ma\' apply to develop beds under this Rule. However. 

such hospitals shall not develop long-term care beds both to meet needs determined in 10 

NCAC 3R .3030 and this Rule. 

Beds certified as a "distinct part" under this Rule shall be noted as such in J_0 NCAC 3R 

.3000 and shall be counted in the inventory of existing long-term care beds and used in the 

calculation of unmet long-term care bed need for the general population of a planning area. 

Applications for certificates of need pursuant to this Rule shall be accepted only for the 

February i review cycle. Beds awarded under this Rule shall be deducted from need 

determinations for the county as shown in JfJ NCAC 3_R .3030. Continuation of this Rule 

shall be reviewed and approved by the Department of Human Resources annually . 

Certificates of need issued under policies analogous to this Rule in State Medical Facilities 

Plans subsequent to the 1986 Plan are automatically amended to conform with the provisions 

of this Rule at the effective date of this Rule. The Department of Human Resources shall 

monitor this program and ensure that patients affected by this Rule are receiving appropriate 

services, and that conditions under which the certificate of need was granted are being met. 

Plan Exemption for Continuing Care Facilities. Qualified continuing care facilities may include 

from the outset, or add or convert bed capacity for long-term nursing care without regard to the 

bed need shown in J_0 NCAC 3R .3030. To qualify for such exemption, applications for 

certificates of need shall show that the proposed long-term nursing bed capacity: 

(Ai Will only be developed concurrently with, or subsequent to construction on the same site, of 

facilities for both of the following levels of care: 

(i.I independent living accommodations i apartments and homes i for persons who are able to carry 

out normal activities of daily living without assistance: such accommodations may be in the 

form of apartments, flats, houses, cottages, and rooms within a suitable structure: 

(ii) domiciliary care (home for the agedi beds for use by persons who . because of age or 

disability require some personal services, incidental medical services, and room and board 

to assure their safety and comfort. 

i B) Will be used exclusively to meet the needs of persons with whom the facility has continuing care 

contracts (in compliance with the Department of Insurance statutes and regulations! who have 

lived in a non-nursing unit of the continuing care facility for a period of at least 30 days. 

Exceptions shall be allowed when one spouse or sibling is admitted to the nursing unit at the time 

the other spouse or sibling moves into a non-nursing unit, or when the medical condition 

requiring nursing care was not known to exist or be imminent when the individual became a party 



1388 7:14 XORTH CAROLINA REGISTER October 15, 1992 



PROPOSED RULES 



to the continuing care contract. Financial consideration paid by persons purchasing a continuing 
care contract shall be equitable between persons entering at the "independent living" and 
"domiciliary" levels of care. 

(C) Reflects the number of beds required to meet the current or projected needs of residents with 
whom the facility has an agreement to provide continuing care, after making use of all feasible 
alternatives to institutional nursing care. 

(D) Will not be certified for participation in the Medicaid program. One half of the long-term 
nursing beds developed under this exemption shall be excluded from the inventory used to project 
bed need for the general population. Certificates of need issued under policies analogous to this 
Rule in State Medical Facilities Plans subsequent to the 1985 SMFP are automatically amended 
to conform with the provisions of this Rule at the effective date of this Rule. Certificates of need 
awarded pursuant to the provisions of Chapter 920, Session Laws 1983, or Chapter 445, Session 
Laws 1985 shall not be amended except by law. 

(3) Development of Home Health Services. After applying other required criteria, when superiority 
among two or more competing home health agency or office certificate of need applications is 
uncertain, favorable consideration shall be given to proposals which: 

(A) provide an expanded scope of services (including nursing, physical therapy, speech therapy, and 
home health aide service): 

(B) provide the widest range of treatments within a given service; and 

(C) have the ability to offer services on a seven days per week basis as required to meet patient 
needs. 

(4) Need Determination Upon Termination of County's Sole Home Health Agency. When a home 
health agency's board of directors, or j_n the case of a public agency, the responsible public body, 
votes to discontinue the agency's provision of home health services; and 

(A) the agency is the only home health agency with an office physically located in the county; and 

(B) the agency is not being lawfully transferred to another entity; need for a new home health agency 
or office in the county is thereby established through this Rule. 

Following receipt of written notice of such decision from the home health agency's chief 
administrative officer, the Certificate of Need Section shall give public notice of the need for one 
home health agency or office in the county, and the dates of ffie review of applications to meet the 
need. Such notice shall be given no less than 45 days prior to the final date for receipt of 
applications in a newspaper serving the county and to home health agencies located outside the 
county reporting serving county patients in the most recent licensure applications on file. 

(5) Availability of Dialysis Care. After applying other required criteria, when superiority among two 
or more competing dialysis facility or station certificate of need applications is uncertain, favorable 
consideration shall be given to applicants proposing to provide or arrange for: 

(A) home training and backup for patients suitable for home dialysis in the ESRD dialysis facility or 
in a facility that is a reasonable distance from the patient's residence; 

(B) ESRD dialysis service availability at times that do not interfere with ESRD patients' work 
schedules: 

(C) services in rural, remote areas. 

(6) Need for an Additional Home Health Agency Office Within an Existing Home Health Service Area. 
When an existing home health agency is serving 150 home health patients or more on an annual 
basis (as documented on the agency's 1993 license renewal application) in a county in its authorized 
service area as defined in J_0 NCAC 3R. 0320 in which the agency has no home health office, the 
agency shall be allowed to apply for a CON to open a home health agency office within that 
county. Such application must document to the satisfaction of the Certificate of Need Section that 
the additional home health agency office will provide improved client service at a lower cost. The 
additional home health agency office shall only be allowed to provide services within the agency's 
authorized service area. No applications shall be received under this provision for additional home 
health agency offices i_n counties outside of a home health agency's authorized service area or for 
any county within the service area where the agency already has one or more home health agency 
offices or where the agency is not serving at least 150 home health patients on an annual basis. 
This Rule shall allow no expansion of home health services outside of the agency's service area as 
defined by 10 NCAC 3R .0320. 



7:14 NORTH CAROLINA REGISTER October 15, 1992 1389 



PROPOSED RULES 



(cj MENTAL HEALTH FACILITIES AND SERVICES. 

1. 1 1 Appropriate Provision of Care. Hospitalization shall be considered the most restrictive form of 
therapeutic intervention or treatment and shall be used only when this level of 24-hour care and 
supervision is required to meet the patient's health care needs . 

(2i Linkages Between Treatment Settings. Anyone applying for a certificate of need for psychiatric. 
1CF MR or substance abuse beds shall document that the affected area mental health, developmen- 
tal disabilities and substance abuse authorities have been contacted and invited to comment on the 
proposed services, relative to their endorsement of the project and involvement in the development 
of a client admission and discharge agreement. 

(3) Transfer of Beds from State Psychiatric Hospitals to Community Facilities. Beds in the State 
psychiatric hospitals used to serve short-term psychiatric patients may be relocated to community 
facilities. However, before beds are transferred out of the State psychiatric hospitals, appropriate 
services and programs shall be available m the community. The process of transferring beds shall 
not result in a net change in the number of psychiatric beds available, but rather in the location of 
beds counted in the existing inventory. State hospital beds which are relocated to community 
facilities shall be closed within ninety days following the date the transferred beds become 
operational in the community. Facilities proposing to operate transferred beds shall commit to 
serve the type of short-term patients normally placed at the State psychiatric hospitals. To help 
ensure that relocated beds will serve those persons who would have been served by the State 
psychiatric hospitals, a proposal to transfer beds from a State hospital shall include a written 
memorandum of agreement between the area MH'DDSAS program serving the county where the 
beds are to be located, the Secretary of Human Resources, and the person submitting the proposal. 

i4i Inpatient Psychiatric Sen ices for Children and Adolescents. Inpatient psychiatric treatment of 
children and adolescents which is more extensive than stabilization shall occur in units which are 
separate and distinct from both adult psychiatric units and general pediatric units. In order to 
maximize efficiency and ensure the availability of a continuum of care, psychiatric beds for 
children and adolescents shall be developed in conjunctio n with outpatient treatment programs. 

(5) Adjustment to Psychiatric Bed Allocations. The Medical Facilities Planning Section shall reduce 
any psychiatric bed need determinations for any affected planning area by the number of beds 
permitted by the provisions of G.S. 13 1 E-184(ci contracted subsequent to the preparation of any 
need determination shown in JO NCAC 3R .3030 and prior to the beginning of the review period 
for which an application is submitted. 

(6) Involuntarily Committed Patients. All certificate of need applications for psychiatric beds shall 
indicate the proponents' willingness to be designated to serve involuntarily committed patients. 

(7) Substance Abuse Programs to Treat Adolescents. Adolescents shall receive substance abuse 
treatment services that are distinct from services provided to adults. 

(8) Determination of Intermediate Care Bed Need for Mentally Retarded Developmental! v Disabled 
Persons. After applying other required criteria, when superiority among two or more competing 
ICF MR certificate of need applications is uncertain, favorable consideration shall be given to 
counties that do not have ICF MR group homes when such counties are part of a multi-county area 
for which a need is shown in JO NCAC 3R .3030. 

(9) Transfer of Beds from State Mental Retardation Centers. Facilities proposing to transfer ICF MR 
beds from State mental retardation centers to communities shall demonstrate that they are 
committed to serving the same type of residents normally served in the State mental retardation 
centers. To ensure that relocated beds will serve those persons, any certificate of need application 
for beds allocated under the above policy must meet the requirements of Chapter 858 of the 1983 
Session Laws . The application for transferred beds shall include a written agreement by the 
applicant with the following representatives which outlines the operational aspects of the bed 
transfers: Director of the Area MH DP SAS Program serving the county where the program is 
to be located: the Director of the applicable State Mental Retardation Center: the Chief of 
Developmental Disability Services in tine DMH DP SAS: and the Secretary' of the Department of 
Human Resources. 

Statutory' Authority G.S. 131E-176(25); 131E-177(1); 131E-183(1). 



1390 7:14 SORTH CAROLINA REGISTER October IS, 1992 



PROPOSED RULES 



IS otice is hereby given in accordance with G.S. 
150B-21.2 that the DHR/Division of Medical 
Assistance intends to amend rules cited as 10 
NCAC 26B .0110; 26C .0005; 26H .0102 - .0103, 
.0106, .0303, .0401; and adopt rules cited as 10 
NCAC 26H .0404; 26N .0101 - .0107, .0201 - 
.0206. .0301 - .0303. 

1 he proposed effective date of this action is 
January 4. 1993. 

1 he public hearing will he conducted at 1:30 
p.m. on November 2, 1992 at the North Carolina 
Division of Medical Assistance. 1985 Umstead 
Drive, Room 132, Raleigh, NC 27603. 

Keason for Proposed Action; 

10 NCAC 26B .0110 - To provide ambulance 
transportation in circumstances where it is medi- 
cally necessary. 

10 NCAC 26C .0005 - Amend rules to clarify that 
all Medicaid covered services must be medically 
necessary. 

10 NCAC 26H .0102 - To provide for retroactive 
rate adjustments under specified conditions; to 
clarify rate-setting methodology for ventilator 
dependent and head injured nursing facility pa- 
tients; and to provide for religious diets in Medic- 
aid rates. 

10 NCAC 26H .0103 - To delete unnecessary 
phrases related to hair care in nursing facilities. 

10 NCAC 26H .0106 - To clarify that cost reports 
used in reconsideration reviews must be for a 
specific cost reporting period. 

10 NCAC 26H .0303 - To allow start-up costs to 
be amortized over 36 months, to include capital 
cost and lease expense limitations and the setting 
of the initial rate. It is estimated that the proposed 
change will decrease Medicaid expenditures in 
future fiscal years. Tlie agency is proposing this 
amendment in order to limit capital cost recovery 
to a reasonable level and to discourage undercapi- 
talized providers from entering the program. 



10 NCAC 26H .0401 - This amendment will allow 
reimbursement to physicians based on the North 
Carolina Medicaid Fee Schedule. 

10 NCAC 26H .0404 - Addresses physician fee 
schedule for practitioners other than Chiroprac- 
tors, Optometrists , and Podiatrists. Fee schedule 
is based on the RBRVS fee schedule. 

10 NCA C 26N .0101 - . 0107, . 0201 - . 0206. . 0301 
- .0303 - Omnibus Budget Reconciliation Act of 
1990 (OBRA 90) which changed Social Security 
Act 1927(g) and G.S. 108A-68 which mandates 
DUR by January 1. 1993. 

Comment Procedures; Written comments concern- 
ing these amendments and adoptions must be 
submitted by November 17, 1992, to: Division of 
Medical Assistance, 1985 Umstead Drive, Raleigh, 
NC 27603 ATTN: Clarence Ervin, APA Coordi- 
nator. Oral comments may be presented at the 
hearing. In addition, a fiscal impact statement is 
available upon written request from the same 
address. 

CHAPTER 26 - MEDICAL ASSISTANCE 

SUBCHAPTER 26B - MEDICAL ASSIS- 
TANCE PROVIDED 

SECTION .0100 - GENERAL 

.0110 AMBULANCE SERVICES 

R e imburs e m e nt for ambulance se rvic es s hall b e 



mad e only for tran s portation to th e n e ar e st facility 
(hospital. — nur s ing — hom e , — ef — int e rm e diat e — eafe 
facility), or for transportation to a phy s ician' s 
office — m — em — e m e rg e ncy — when — the — phy s ician's 
tr e atm e nt i s n e c ess ary to s tabiliz e a pati e nt e nrout e 
to th e near e st appropriat e facility. Services pro- 
vided by an ambulance provider under the Medic- 
aid program must be provided in accordance with 
the provisions of Attachment 3. 1-A.l. item num- 
ber 23a of the North Carolina State Plan for 
Medical Assistance as approved by the Health 
Care Financing Administration, which is adopted 
by reference, including any subsequent amend- 
ments. (Copies of Attachment 3. 1-A may be 
obtained from the Division of Medical Assistance 
at a cost of twenty cents ($0.20) a copy.) 

Authority G.S. 108A-25(b); 108A-54; 42 C.F.R. 
440.170. 



7:14 NORTH CAROLINA REGISTER October 15, 1992 



1391 



PROPOSED RULES 



SUBCHAPTER 26C - AMOUNT: DURA- 
TION: AND SCOPE OF ASSISTANCE 



.0005 MEDICAL SERVICES 



All medical sc 



medical services portormod must bo medical 
W — necessary — and — may — set — be experimental — m 
nature. — Medical necessity is determined by goner 
allv accepted North Carolina community practice 



s tandard s 



-as — vent 



fted — kv — independent — Medieaid 



consultants. All covered sen ices must meet the 
test of medical necessity as defined by the state 
agency using specific criteria, if established, and in 
accordance with generally accepted North Carolina 
community practice standards as verified by 
independent Medicaid consultants. A verification 
of medical necessity for all services may be made 
by the state agency or its designee. A determina- 
tion that medical necessity has not been met may 
result in a recoupment of payment or. if payment 
has not been made, a denial of payment. 

Authority G.S. 108A-25(b): 42 C.F.R. 440.230(d). 

SUBCHAPTER 26H - REIMBURSEMENT 
PLANS 

SECTION .0100 - REIMBURSEMENT FOR 
NURSING FACILITY SERVICES 



.0102 RATE SETTING METHODS 

(a) A rate for skilled nursing care and a rate for 
intermediate nursing care is determined annually 
for each facility to be effective for dates of service 
for a twelve month period beginning each October 
1 . Each patient will be classified in one of the two 
categories depending on the services needed. 
Rates are derived from either filed, desk, or field 
audited cost reports for a base year period to be 
selected by the state. Rates developed from filed 
cost reports may be retroactively adjusted if there 
is found to exist more than a two percent differ- 
ence between the filed direct per diem cost and 
either the desk audited or field audited direct per 
diem cost for the same reporting period. Cost 
reports are filed and audited under provisions set 
forth in Rule .0104 of this Section. The criteria 
for determining the classification of each patient 
are presented in Appendix 1 of Attachment 3.1 -A 
of the state plan. The minimum requirements of 
the 1987 OBRA are met by these provisions. 

(b) Each prospective rate consists of two compo- 
nents: a direct patient care rate and an indirect rate 
computed and applied as follows: 

The direct rate is based on the Medic- 
aid cost per day incurred in the follow- 



ing cost centers: 

(A) Nursing, 

(B) Dietary or Food Service. 

(C) Laundry and Linen, 

(D) Housekeeping. 

(E) Patient Activities, 

(F) Social Services. 

(G) Ancillary' Services (includes several 
cost centers). 

(2) To compute each facility's direct rate 
for skilled care and intermediate care. 
the direct base year cost per day is 
increased by adjustment factors for 
price changes as set forth in Rule 
.0102(c). 

(A) A facility's direct rates cannot exceed 
the maximum rates set for skilled 
nursing or intermediate nursing care. 
However, the Division of Medical 
Assistance may negotiate direct rates 
that exceed the maximum rate for 
ventilator dependent patients. Pay- 
ment of such special direct rates shall 
be made only after specific prior 
approval of the Division of Medical 
Assistance. 

(B) A standard per diem amount will be 
added to each facility's direct rate, 
including facilities that are limited to 
the maximum rates, for the projected 
statewide average per diem costs of 
the salaries paid to replacement nurse 
aides for those aides in training and 
testing status and other costs deemed 
by HCFA to be facility costs related 
to nurse aide training and testing. 
The standard amount is based on the 
product of multiplying the average 
hourly wage, benefits, and payroll 
taxes of replacement nurse aides by 
the number of statewide hours re- 
quired for training and testing of all 
aides divided by the projected total 
patient days. 

(3) If a facility did not report any costs for 
either skilled or intermediate nursing 
care in the base year, the state average 
direct rate will be assigned as deter- 
mined in Rule .0102(d) of this Section 
for the new type of care. 

(4) The direct maximum rates are devel- 
oped by ranking base-year per diem 
costs from the lowest to the highest in 
two separate arrays, one for skilled care 
and one for intermediate care. The per 



1392 



7:14 NORTH CAROLINA REGISTER October 15, 1992 



PROPOSED RULES 



diem cost at the 80th percentile in each 
array is selected as the base for the 
maximum rate. The base cost in each 
array is adjusted for price changes as 
set forth in Rule .0102(c) of this Sec- 
tion to determine the maximum state- 
wide direct rates for skilled care and 
intermediate care and weighting each by 
total patient days. 
(5) Effective October 1. 1990. the direct 
rates will be adjusted as follows: 
(A) A standard per diem amount will be 
added to each facility's skilled and 
intermediate rate to account for the 
combined expected average additional 
costs for the continuing education of 
nurses' aides; the residents' assess- 
ments, plans of care, and charting of 
nursing hours for each patient; per- 
sonal laundry and hygiene items; and 
other non-nursing staffing require- 
ments. The standard amount is equal 
to the sum of: 
(i) the state average annual salary, 
benefits, and payroll taxes for one 
registered nurse position multi- 
plied by the number of facilities 
in the state and divided by the 
state total of patient days; 
(ii) the total costs of personal laundry 
and hygiene items divided by the 
total patient days as determined 
from the FY 1989 cost reports of 
a sample of nursing facilities 
multiplied by the annual adjust- 
ment factor described in Rule 
.0102(c)(4)(B) of this Section; and 
(iii) the state average additional phar- 
macy consultant costs divided by 
365 days and then divided by the 
average number of beds per facili- 
ty- 
IB) A standard amount will be added to 
the intermediate rate of facilities that 
were certified only for intermediate 
care prior to October 1. 1990. This 
amount will be added to account for 
the additional cost of providing eight 
hours of RN coverage and 24 hours 
of licensed nursing coverage. The 
standard amount is equal to the state 
average hourly wage, benefits and 
payroll taxes for a registered nurse 
multiplied by the 16 additional hours 
of required licensed nursing staff 



divided by the state average number 
of beds per nursing facility. A lower 
amount will be added to a facility 
only if it can be determined that the 
facility's intermediate rate prior to 
October 1, 1990 already includes 
licensed nursing coverage above eight 
hours per day. The add-on amount in 
such cases would be equal to the 
exact additional amount required to 
meet the licensed nursing require- 
ments. 
(C) The standard amounts in Subpara- 
graphs (2)(B), (5)(A), and (5)(B) of 
this Rule, will be retained in the rates 
of subsequent years until the year that 
the rates are derived from the actual 
cost incurred in the cost reporting 
year ending in 1991 which will reflect 
each facility's actual cost of comply- 
ing with all OBRA '87 requirements. 

(6) Upon completion of any cost reporting 
year any funds received by a facility 
from the direct patient care rates which 
have not been spent on direct patient 
care costs as defined herein are repaid 
to the State. This will be applied by 
comparing a facility's total Medicaid 
direct costs with the combined direct 
rate payments received for skilled and 
intermediate care. Costs in excess of a 
facility's total prospective rate payments 
are not reimbursable. 

(7) The indirect rate is intended to cover 
the following costs of an efficiently and 
economically operated facility: 

(A) Administrative and General, 

(B) Operation of Plant and Maintenance, 

(C) Property Ownership and Use, 

(D) Mortgage Interest. 

(8) Effective for dates of service beginning 
October 1, 1984 and ending September 
30. 1985 the indirect rates are fourteen 
dollars and sixty cents ($14.60) for 
each SNF day of care and thirteen 
dollars and fifty cents ($13.50) for each 
ICF day of care. These rates represent 
the first step in a two step transition 
process from the different SNF and ICF 
indirect rates paid in 1983-84 and the 
nearly equal indirect rates that will be 
paid in subsequent years under this plan 
as provided in this Rule. 

(9) Effective for dates of service beginning 
October 1. 1985 and annually thereafter 



7:14 NORTH CAROLINA REGISTER October 15, 1992 



1393 



PROPOSED RULES 



per diem indirect rates will be comput- 
ed as follows: 

(A) The average indirect payment to all 
facilities in the fiscal year ending 
September 30. 1983 [which is thirteen 
dollars and two cents (Si 3.02)] will 
be the base rate. 

(B) The base rate will be adjusted for 
estimated price level changes from 
fiscal year 1983 through the year in 
which the rates will apply in accor- 
dance with the procedure set forth in 
Rule .0102(c) of this Section to estab- 
lish the ICF per diem indirect rate. 

(C) The ICF per diem indirect rate shall 
be multiplied by a factor of 1 .02 to 
establish the SNF per diem indirect 
rate. This adjustment is made to 
recognize the additional administrative 
expense incurred in the provision of 
SNF patient care. 

(10) Effective for dates of service beginning 
October 1. 1989. a standard per diem 
amount will be added to provide for the 
additional administrative costs of pre- 
paring for and complying with all nurs- 
ing home reform requirements. The 
standard amount is based on the aver- 
age annual salary, benefits and payroll 
taxes of one clerical position multiplied 
by the number of facilities in the state 
divided by the state total of patient 
days. 
(Ill Effective for dates of service beginning 
October 1. 1990. the indirect rate will 
be standard for skilled and intermediate 
care for all facilities and will be deter- 
mined by applying the 1990-91 indirect 
cost adjustment factors in Rule .0102(c) 
of this Section to the indirect rate paid 
for SNF during the year beginning 
October 1. 1989. Thereafter the indi- 
rect rate will be adjusted annually by 
the indirect cost adjustment factors. 
(c) Adjustment factors for changes in the price 
level. The rate bases established in Rule .0102(b). 
are adjusted annually to reflect increases or de- 
creases in prices that are expected to occur from 
the base year to the year in which the rate applies. 
The price level adjustment factors are computed 
using aggregate base year costs in the following 
manner: 

( 1 ) Costs will be separated into direct and 
indirect cost categories. 

(2) Costs in each catesorv will be accumu- 



lated into the following groups: 

(A) labor. 

(B) other, 

(C) fixed. 

(3) The relative weight of each cost group 
is calculated to the second decimal 
point by dividing the total costs of each 
group (labor, other, and fixed) by the 
total costs for each category (direct and 
indirect). 

(4) Price adjustment factors for each cost 
group will be established as follows: 

(A) Labor. The expected annual percent- 
age change in direct labor costs as 
determined from a survey of nursing 
facilities to determine the average 
hourly wages for RNs, LPNs, and 
aides paid in the current year and 
projected for the rate year. The 
percentage change for indirect labor 
costs is based on the projected aver- 
age hourly wage of N.C. service 
workers. 

(B) Other. The expected annual change 
in the implicit price deflator for the 
Gross National Product as provided 
by the North Carolina Office of State 
Budget and Management. 

(C) Fixed. No adjustment will be made 
for this category, thus making the 
factor zero. 

(D) The weights computed in (c)(3) of this 
Rule shall be multiplied times the 
percentage change computed in 
(c)(4)(A). (B) and (C) of this Rule. 
These products shall be added sepa- 
rately for the direct and indirect cate- 
gories. 

(E) The sum computed for each category 
in (c)(4)(D) of this Rule shall be the 
price level adjustment factor for that 
category of rates (direct or indirect) 
for the coming fiscal year. 

(F) However, for the rate period begin- 
ning October 1. 1991 through Sep- 
tember 30. 1992 the forecast of the 
N.C. Service Wages percent applied 
to the 1991-92 Inpatient Hospital and 
Intermediate Care Facility for the 
Mentally Retarded rates is applied to 
the Labor component weight comput- 
ed in (c)(4)(A) of this Rule. 

(G) For the rate period beginning October 
1. 1991 through September 30. 1992 
the direct adjustment factor deter- 



♦ 



1394 



7:14 NORTH CAROLINA REGISTER October 15, 1992 



PROPOSED RULES 



mined under (c)(4) of this Rule will 
be applied to the direct rate adjust- 
ments determined under (b)(2), 
(b)(5)(A) and (b)(5)(B) of this Rule. 

(d) The skilled and intermediate direct patient 
care rates for new facilities are established at the 
lower of the projected costs in the provider's 
Certificate of Need application inflated to the 
current rate period or the average of industry base 
year costs and adjusted for price changes as set 
forth in Rule .0102(c) of this Section. A new 
facility receives the indirect rate in effect at the 
time the facility is enrolled in the Medicaid pro- 
gram. In the event of a change of ownership, the 
new owner receives the same rate of payment 
assigned to the previous owner. 

(e) Each out-of-state provider is reimbursed at 
the lower of the appropriate North Carolina maxi- 
mum rate or the provider's payment rate as estab- 
lished by the State in which the provider is locat- 
ed. For patients with special needs who must be 
placed in specialized out-of-state facilities, a 
payment rate that exceeds the North Carolina 
maximum rate may be negotiated. 

(f) Specialized Service Rates: 

(1) Head Injury Intensive Rehabilitation 
Services. 
(A) f4-) A single all-inclusive prospective 
per diem rate combining both the 
direct and indirect cost components 
can be negotiated for nursing facilities 
that specialize in providing intensive 
rehabilitation services for head-injured 
ef — ventilator dependent patients as 
specified by criteria in Appendix 3 to 
Attachment 3. 1 -A of the State Plan, 
which js adopted by reference, includ- 
ing subsequent amendments and addi- 
tions. (Copies of Appendix 3 to 
Attachment 3.1-A of the State Plan 
can be obtained from the Division of 
Medical Assistance at a cost of twenty 
cents ($0.20) a copy.) The rate may 
exceed the maximum rate applicable 
to other Nursing Facility services. 
For head injury service s , a A facility 
must specialize to the extent of staff- 
ing at least 50 percent of its Nursing 
Facility licensed beds for intensive 
head-injury rehabilitation services. 
The facility must also be accredited 
by the Commission for the Accredita- 
tion of Rehabilitation Facilities 
(CARF). For ventilator service s , the 
only facilitie s that are eligible for a 



combined s ingle rate are small free - 
s tanding facilities with less than 21 
Nur s ing Facility beds and that serve 
©fl4y — patient s — requiring — ventilator 
services. Ventilator s ervic es provided 
in larger facilities arc reimbursed at 
higher direct rates as described in 
Rule .0102(b)(2)(A) of this Section. 

(B) (3) A facility's initial rate is negotiat- 
ed based on budget projections of 
revenues, allowable costs, patient 
days, staffing and wages. A complete 
description of the facility's medical 
program must also be provided. 
Rates in subsequent years are deter- 
mined by applying the average annual 
skilled nursing care adjustment factors 
to the rate in the previous year, unless 
either the provider or the State re- 
quests a renegotiation of the rate 
within 60 days of the rate notice. 

(C) 0) Cost reports for these s ervices 
this service must be filed in accor- 
dance with the rules in Rule .0104 of 
this Section, but there will be no cost 
settlements for any differences be- 
tween e»sts cost and payments. Since 
it is appropriate to include all finan- 
cial considerations in the negotiation 
of a rate, a provider will not be eligi- 
ble to receive separate payments for 
return on equity as defined in Rule 
.0105 of this Section. 

(2) Ventilator Services. 

(A) Ventilator services approved for 
nursing facilities providing intensive 
services for ventilator dependent 
patients are reimbursed at higher 
direct rates as described in Paragraph 
(b)(2)(A) of this Rule. Ventilator 
services are paid by combining the 



IB} 



£Q 



enhanced direct rate with the nursing 
facility indirect rate determined under 
Subparagraph (b)(l 1) of this Rule. 
A facility's initial direct rate is negoti- 
ated based on budget projections of 
revenues, allowable costs, patient 
days, staffing and wages. Rates in 
subsequent years are determined by 
applying the nursing facility direct 
adjustment factor to the previous 12 
month cost report direct cost. 
Cost reports and settlements for this 
service will be in accordance with 
Rule .0104 of this Section and return 



7:14 NORTH CAROLINA REGISTER October 15, 1992 



1395 



PROPOSED RULES 



on equity is allowed as defined in 
Rule .0105 of this Section. 
(D) A single all-inclusive prospective per 
diem rate combining both the direct 
and indirect cost components can be 
negotiated for nursing facilities that 
specialize in providing intensive ser- 
vices for ventilator-dependent pa- 
tients. The rate may exceed the 
maximum rate applicable to other 
Nursing Facility services. For venti- 
lator services, the only facilities that 
are eligible for a combined single rate 
are small freestanding facilities with 
less than 21 Nursing Facility Beds 
and that serve only patients requiring 
ventilator services. Ventilator servic- 
es provided in larger facilities are 
reimbursed at higher direct rates as 
described in Paragraph (b)(2)(A) of 
this Rule. 
(g) In addition to the prospective direct per diem 
rates developed under this Section, effective July 
1. 1992. an interim payment add on will be ap- 
plied to the total rate to cover the estimated cost 
required under Title 29. Part 1910. Subpart Z, 
Section 1910. 1030 of the Code of Federal Regula- 
tions. The interim rate will be subject to final 
settlement reconciliation with reasonable cost to 
meet the requirements of Part 1910. The final 
settlement reconciliation will be effectuated during 
the annual cost report settlement process. An 
interim rate add on to the prospective rate will be 
allowed, subject to final settlement reconciliation, 
in subsequent rate periods until adequate cost 
history is available to include the cost of meeting 
the requirements of Part 1910 in the prospective 
rate. 
(h) Religious Dietary Considerations. 
( 1 ) A standard amount may be added to a 
nursing facility's skilled and intermedi- 



ate care rates, that may exceed the 
maximum rates determined under Para- 



Li) 



graph (b) of this Rule, for special di- 
etary need for religious reasons. 
Facilities must apply to receive this 
special payment consideration. In 
applying, facilities must document the 
reasons for special dietary consideration 
for religious reasons and must submit 
documentation for the increased dietary 
costs for religious reasons. Facilities 
must apply for this special benefit each 
time rates are determined fro m a new 
data base. Fifty or more percent of the 



patients jn total licensed beds must 
require religious dietary consideration 
in order for the facility to qualify for 
this special dietary rate add-on. 

(3) The special dietary add-on rate may not 
exceed more than a 30 percent increase 
in the average skilled and intermediate 
care dietary rates calculated for the 
80th percentile of facilities determined 
under Subparagraph (b)(4) of this Rule 
and adjusted for annual inflation fac- 
tors. This maximum add-on will be 
adjusted by the direct rate inflation 
factor each year until a new data base |s 
used to determine rates. 

(4) This special dietary add-on rate will 
become part of the facility's direct rates 
to be reconciled in the annual cost 
report settlement. 

Authority G.S. 108A-25(b); W8A-54; 108A-55: 
S.L. 1985. c. 479, s. 86; 42 C.F.R. 447, Subpart 
C; 29 C.F.R. 1910. Subpart Z; S.L. 1991, c. 689, 

s. 95. 

.0103 REASONABLE AND NON- 
ALLOWABLE COSTS 

(a) Providers have a responsibility to operate 
economically and efficiently so that their costs are 
reasonable. Providers are required to provide 
services at the lowest possible costs in compliance 
with Federal and State laws, regulations for licens- 
ing and certification, and standards for quality of 
care and patients' safety. Providers are also 
responsible for the financial actions of their agents 
(e.g.. management companies) in this regard. 

(b) The state may publish guidelines to define 
reasonable costs in certain areas after study of 
industry-wide cost conditions. 

(c) The following costs are considered 
non-allowable facility costs because they are not 
related to patient care or are specifically disal- 
lowed under the North Carolina State Plan: 



(1) 

(2) 



(3) 

(4) 
(5) 



(6) 



bad debts; 

advertising--except personnel want ads. 

and one line yellow page (indicating 

facility address); 

life insurance (except for employee 

group plans); 

interest paid to a related party; 

contributions, including political or 

church-related, charity and courtesy 

allowances; 

prescription drugs and insulin (available 

to recipients under State Medicaid Drug 



1396 



7:14 NORTH CAROLINA REGISTER October 15, 1992 



PROPOSED RULES 



Program); 

(7) vending machine expenses; 

(8) personal grooming other than haircuts, 
shampooing (basic hair care services) 
and nail trimming; performed by either 
facility — s taff — ©f — barbers/beautician s . 
The facility may elect the means of 
s ervice delivery. — The co s t s of s ervice s 
beyond tho s e provided by the nursing 
facility — are — the — responsibility of the 
patient; 

(9) state or federal corporate income taxes, 
plus any penalties and interest; 

(10) telephone, television, or radio for per- 
sonal use of patient; 

(11) penalties or interest on income taxes; 

(12) dental expenses— except for consultant 
fees as required by law; 

(13) personal income taxes, plus any penal- 
ties and interest; 

(14) farm equipment and other expenses; 

(15) retainers, unless itemized services of 
equal value have been rendered; 

(16) physicians fees for other than utilization 
review or medical directors or medical 
consultants as required by law; 

(17) country club dues; 

(18) sitter services or private duty nurses; 

(19) fines or penalties; 

(20) guest meals; 

(21 ) morgue boxes; 

(22) leave days— except therapeutic leave; 

(23) personal clothing; 

(24) ancillary costs that are billable to Medi- 
care or other third party payors. 

(d) For those non-allowable expenses which 
generate income, such as prescription drugs, 
vending machines, barber and beauty shop, etc., 
expense should be identified as a non-reimbursable 
cost center, where determinable. If the provider 
cannot determine the proper amount of expense 
which is to be identified, then the income which 
was generated must be offset in full to the appro- 
priate cost center. 

Authority G.S. J08A-25(b); 108A-54; 108A-55; 
S.L. 1985, c. 479, s. 86; 42 C.F.R. 447, Subpart 
C. 

.0106 RECONSIDERATION REVIEWS 

(a) As required by 42 CFR 447, Subpart C. 
providers may submit additional evidence for 
determination of reimbursement amounts pursuant 
to the Medicaid State Plan, Attachment 4.19-D, 
Section .0106, which is hereby adopted by refer- 



ence according to G.S. 150B-14(c). 

(b) Indirect rates shall not be adjusted on recon- 
sideration review. 

(c) A direct rate may be adjusted on reconsider- 
ation review if a provider can establish to the 
satisfaction of the state agency that such an adjust- 
ment is necessary to protect the health and safety 
of its patients and to sustain its financial viability. 
A facility is considered to be financially viable, 
and therefore not eligible for a rate adjustment, if 
its total Medicaid rate payments and return on 
equity exceeded its total Medicaid cost as reported 
in the most recent 12 month cost report, available. 
Providers are expected to utilize all available funds 
to provide the services that their patients need. 
Once a provider has reported a loss for a certain 
year. 12 month period beginning October I and 
ending September 30, a direct rate of adjustment 
can then be negotiated for the following year at a 
level no greater than what is absolutely necessary 
for patient care and for the financial viability of 
the facility. The adjusted rate cannot exceed the 
applicable maximum direct rate as established by 
Rule .0102(bH^ (4) and (5). 

(d) Direct rates may also be adjusted without 
regard to the provisions of Paragraph (c) of this 
Rule for the following reasons: 

(1) to correct erroneous data in the rate 
base; 

(2) to accommodate any changes in the 
minimum standards or minimum levels 
of resources required in the provision 
of patient care that are mandated by 
state or federal laws or regulation; 

(3) to maintain services at levels commen- 
surate with any rate adjustments that 
are allowed between the base year and 
the year in which the rates derived from 
that base year are first effective. 

(e) Adjustments to reimbursement settlements 
shall be made on the basis of the reimbursement 
principles set forth in this plan or incorporated 
here by reference [See Rule .0104(e)]. 

Authority G.S. 108A-25(h); 108A-54; 108A-55; 
150B-1LS.L. 1985, c. 479, s. 86; 42 C.F.R. 447, 
Subpart C. 

SECTION .0300 - ICF-MR PROSPECTIVE 
RATE PLAN 

.0303 METHODS AND STANDARDS 
FOR DETERMINING RATES 

(a) Prospective rates for each ICF-MR provider 
shall be determined annually to be effective for a 



7:14 NORTH CAROLINA REGISTER October 15, 1992 



1397 



PROPOSED RULES 



12-month period beginning July 1 and ending the 
following June 30. These rates shall be derived 
from actual cost data from a base year to be 
selected bv the state presented in cost reports 
submitted to and audited by the state agency. The 
vear to which this cost report applies shall be 
known as the base year. Appropriate adjustments 
may be made to these base year costs to accommo- 
date changes in applicable federal and state laws or 
regulations. 

(b) The per diem rate for each provider in the 
base year shall be determined by dividing the total 
allowable costs in that year by the total actual 
number of patient days. 

(o The base year per diem rate for each provid- 
er will be inflated from the base year to the year 
in which the rate will apply using inflation factors 
for each intervening year computed as follows: 

( 1 ) Cost data from the base year cost re- 
ports will be aggregated to determine 
the proportion (percent of total) of cost 
in each of the following categories: 

(A) Labor; 

(B) Other Operating: 

(C) Capital which includes the cost for 
use or ownership of physical plant 
and movable equipment. 

(2) Inflation rates for each category will be 
established using official estimates of 
inflation provided by the North Caroli- 
na Office of Budget and Management 
for the year in which the rate shall 
apply. 

(A) Labor costs shall be inflated by the 
estimate of the increase in Average 
Annual Service Wages in North Caro- 
lina, adjusted for any special factors 
related to ICF-MR personnel, howev- 
er, salaries for all personnel shall be 
limited to levels of comparable posi- 
tions in state owned facilities or levels 
specified by the Director of the Divi- 
sion of Medical Assistance: 

iB) Other costs shall be inflated by the 
estimate of the Implicit Price Deflator 
for the U. S. Gross National Product; 
however, management fees shall be 
limited to a sum equal to seven per- 
cent of the maximum ICF rate in the 
state during the current fiscal year; 

(C) Capital cost shall not be inflated. 

(3) Rates determined in 10 NCAC 26H 
.0303(01 2 1 will be multiplied times the 
percentages determined in 10 NCAC 
26H .0303(c)(1) to obtain a weighted 



inflation rate for each category of cost. 

(4) The weighted rates determined in 10 
NCAC 26H .0303(c)(3) will be added 
to obtain the composite inflation rate. 

(5 ) No inflation factor for any provider will 
exceed the maximum amount permitted 
for that provider by federal or state law 
or regulation. 

(d) The prospective rate established in Paragraph 
(c) of this Rule, will be paid to the provider for 
every Medicaid eligible day during the year in 
which it will apply. These prospective rates may 
be determined after the date in which they are to 
go into effect and paid retroactively to that date. 

(e) If allowable costs are less than prospective 
payments during a cost reporting period, a provid- 
er may retain one-half of the difference between 
costs and payments, up to an amount of five 
dollars (S5.00) per patient day. The balance of 
unexpended payments must be refunded to the 
Division of Medical Assistance. 

(f) New Effective for facilities that have been 
awarded a certificate of need on or after January 
L. 1993. new providers are those that have not 
filed a cost report covering at least one full year of 
normal operations. A new provider's initial rate 
shall have be a negotiated rate based upon the 
provider's proposed budget. This rate for a new 
facility shall not exceed the maximum average rate 
being allowed te for existing facilities or any other 
limit established in state law. The rate shall be 
rebased to the actual cost incurred in the first full 
year of normal operations in the f+Fst year after 
audited data for that first year of normal operations 
is completed. 

(g) A special payment in addition to the pro- 
spective rate shall be made in the year that any 
provider changes from the cash basis to the accrual 
basis of accounting for vacation leave costs. The 
amount of this payment shall be determined in 
accordance with Title XVIII allowable cost princi- 
ples and shall equal the Medicaid share of the 
vacation accrual that is charged in the year of the 
change including the cost vacation leave earned for 
that year and all previous years less vacation leave 
used or expended over the same period and vaca- 
tion leave accrued prior to the date of certification. 
The payment shall be made as a lump sum pay- 
ment that represents the total amount due for the 
entire fiscal year. An interim payment may be 
made based on a reasonable estimate of the cost of 
the \acation accrual. The payment shall be adjust- 
ed to actual cost after audit. 

(h) Start-up costs are eest costs incurred by an 
ICF-MR provider while preparing to provide 



1398 



7:14 NORTH CAROLINA REGISTER October 15, 1992 



PROPOSED RULES 



services. It includes the cost incurred by providers 
to provide services at the level necessary to obtain 
certification less any revenue or grants related to 
start-up. The North Carolina Medicaid Program 
will reimburse these start-up costs up to a maxi- 
mum equal to the facility's rate times its beds 
times 120 days. This reimbursement will be made 
in addition to included in the facility's per diem 
rate. The amount shall be payable upon receipt of 
a special start up cost report. — This report should 
be filed within 15 months of the certification date. 
These start-up costs will be amortized over 36 
months and will be reported as Administrative and 
General in the operating cost report. A start-up 
cost report will be required to be submitted along 
with the initial cost report submitted by the new 
ICF-MR provider once certified to participate in 
the Medicaid program. See Paragraph (a) of this 
Rule for initial cost reporting requirements. No 
advance of start-up funds shall be made, prior to 
the desk audit of the start up cost report. This 
Paragraph will be effective for facilities that have 
been awarded a Certificate of Need on or after 
January 1, 1993. 

(i) The annual capital cost or lease expense 
limitation shall be limited to the sum of ( 1 ) and (2) 
as follows: apply: 

( 1) To all facilities with 21 or more beds 
and to facilities consisting of multiple 
detached buildings in which at least one 
contains eight certified beds. The 
facilities covered by this limit shall 
Certificate of 
, 1993. The 



have been awarded a 



Need before January J 

annual capital cost or lease expense 

limit shall be the lesser of actual cost or 

the sum of Subparagraphs (i)( 1 )(A) and 

(B) of this Rule as follows: 

(A) fH The annual depreciation on plant 

and fixed equipment that would be 

computed on assets equal to thirty 

thousand dollars ($30,000) per bed 

(capital recovery base) during the 

fiscal year 1982-83 adjusted for 

changes in the Dodge Building Cost 

Index of North — Carolina cities for 

eaeh — yeaf — since — 1982 8 3. T-h4s 

amount i s computed using the straight 
line method of depreciation and the 
useful life standard s e s tabli s hed by the 

American Hospital Association. 

following cost indexes: 
(i) For the period after 1982-83 and 
prior to 1992-93 the capital recov- 
ery base shall be adjusted for 



changes in the Dodge Building 
Cost Index of North Carolina 
cities. 
Oj] For the period after 1991-92 the 
capital recovery base shall be 
adjusted for changes in the implic- 
it price deflator for residential 
structures as provided by the 
Office of State Budget and Man- 
agement. Depreciation expense 
shall be computed using the 
straight line method of deprecia- 
tion and the useful life standards 
established by the American 
Hospital Association. 

(B) (3) An interest allowance equal to ten 
percent of the maximum — allowed 
hi s torical co s t capital recovery base 
used to compute the annual deprecia- 
tion on plant and fixed equipment. 

(C) (3) This capital/lease annual capital 
cost or lease expense limit does not 
apply to leases in effect prior to Au- 
gust 3, 1983. 

{4} The limitation on capital cost shall not 

be applied to facilitie s with fewer than 
21 certified beds, nor to facilities con 
sisting of multiple detached building s , 
no one of which contains more than 
eight certified beds. 

(2) To all facilities that have been awarded 
a Certificate of Need on or after Janu- 



(A) 



IB} 



ary f, 1993, the annual capital cost or 
lease expense shall be limited to the 
lesser of actual cost or the fair and 
reasonable depreciation and interest 
expense calculated on the capital recov- 
ery based in effect at the time of certifi- 
cation and enrollment into the Medicaid 
program. 
Depreciation expense shall be comput- 
ed using the straight line method of 
depreciation and the useful life stan- 
dards established by the American 
Hospital Association- 
Interest expense is computed using a 
10 percent rate of interest. 
The capital recovery base is estab- 
lished as thirty thousand dollars 
($30,000) of plant and fixed equip- 
ment assets per bed during the fiscal 
year 1982-83 adjusted for the changes 
in the cost indexes contained in Sub- 
paragraphs (i), (1)(A), OD and (u} of 
this Rule. 



7:14 NORTH CAROLINA REGISTER October 15, 1992 



1399 



PROPOSED RULES 



(D) Recovery' of the cost of material 
additions to plant and fixed equipment 
subsequent to certification and enroll- 
ment in the Medicaid program shall 
be subject to review on a case by case 
basis. 
(j) In addition to the prospective direct per diem 
rates developed under this Section, effective July 
1. 1992, an interim payment add on will be ap- 
plied to the total rate to cover the estimated cost 
required under Title 29, Part 1910, Subpart Z, 
Section 1910. 1030 of the Code of Federal Regula- 
tions. The interim rate will be subject to final 
settlement reconciliation with reasonable cost to 
meet the requirements of Part 1910. The final 
settlement reconciliation will be effectuated during 
the annual cost report settlement process. An 
interim rate add on to the prospective rate will be 
allowed, subject to final settlement reconciliation, 
in subsequent rate periods until adequate cost 
history is available to include the cost of meeting 
the requirements of Part 1910 in the prospective 
rate. 

Authority G.S. ]08A-25(b); 108A-54; 108A-55: 
S.L. 1985, c. 479, s. 86: 42 C.F.R. Part 447, 
Subpart C. 

SECTION .0400 - PROVIDER FEE 
SCHEDULES 

.0401 PHYSICIAN'S FEE SCHEDULE 

Effective January _L 1993, physicians' services 
whether furnished in the office, the patient's home, 
a hospital, a skilled nursing facility or elsewhere 
will be reimbursed based on the North Carolina 
Medicaid Fee Schedule. The North Carolina 
Medicaid Fee Schedule is based on the Medicare 
Fee Schedule Resource Based Relative Value 
System (RBRVS), (42 CFR parts 405. 413, and 
415) but with the following clarifications and 
modifications: 

( 1 ) A maximum fee is established for each 
service and is applicable to all specialties 
and settings in which the service is ren- 
dered. Payment is equal to the lower of 
the maximum fee or the provider's cus- 
tomary charge to the general public for 
the particular service rendered. T4m 
plan applies to physicians, chiropractors, 
optometrists, podiatrists, and dentists. 

(2) {4-) — Fees for office s ervice s , ho s pital 
service s , nurs i ng home s ervices, con s ul 
tation s . and obstetric services are derived 
from the s tandard fees that were e s tab 



lished for all s pecialties effective January 
1. 19 88 . Fees are established on a state- 
wide basis using the Medicare Geo graph - 
ic Practice Cost Indices for the North 
Carolina urban locality. 

f2-) Fees for all other services arc established 

by applying the following method to the 
fees in effect on May 1, 1989: 

{a) The higher of the inpatient or outpatient 

fee is selected for each service within 
each specialty and the weighted average 
of this amount i s computed among all 
specialties. The average is weighted by 
the number of services billed by each 
specialty in 1988. 

{bj The weighted average fee is then in 

crea s ed by ten percent. 

{£-) Annual fee increases arc applied each 

January 1 based on the forecast of the 
gro s s national — product — (GNP) — implicit 
price deflator, — btrt — not to — exceed — the 
percentage — increase — approved — by — the 
North Carolina State Legislature. 



<4)- 



(1) 
14] 



Fees for new services are established 



ba se d on the fee s for similar existing 
services. — If there are no s imilar services 
the fee i s e s tabli s hed at 75 percent of 
estimated average charge. 



i&) Fee s for particular services can be 



creased based on administrative review if 
it i s det e rmined that the service is cssen 
tial to the health needs of Medicaid recip 
ient s , — that — ne — alternative — treatment — is 
available, and that a fee adju s tment is 
necessary to maintain physician participa 
tion at a level adequate to meet the needs 



of Medicaid recipients. — A fee 



may 



-ah 



be — decr e a se d — based — eft — administrative 



review if it is determined that the fee 
ft»y — exceed — the — Medicare — allowable 
amount for the s ame or s imilar services, 
or if the fee i s higher than Medicaid fees 
for similar services, or if the fee is too 
high in relation to the skill s , time, and 
other resource s required to provide the 
particular s ervice. 

There will be no transition period in 
applying the Medicaid fees whereas 
Medicare has a five year phase-in period. 
Annual changes jji the Medicaid pay- 
ments will be applied each January 1 
based on Medicare updates through July 
I of ii^ previous calendar year and fee 
increases will be applied based on the 
forecast of the Gross National Product 



1400 



7:14 NORTH CAROLINA REGISTER October 15, 1992 



PROPOSED RULES 



(GNP) Implicit Price Deflator. Said 
annual changes in the Medicaid payments 
shall not exceed the percentage increase 
granted by the North Carolina General 
Assembly. 

(5) Fees for services deemed to be associated 
with adequacy of access to health care 
services may be increased based on ad- 
ministrative review. The service must be 
essential to the health needs of the Med- 
icaid recipients, no other comparable 
treatment available and a fee adjustment 
must be necessary to maintain physician 
participation at a level adequate to meet 
the needs of Medicaid recipients. 

(6) Fees for new services are established 
based on this Rule. If there is no relative 
value unit (RVU) available from Medi- 
care, fees will be established based on 
the fees for similar services. If there is 
no RVU or similar service, the fee will 
be set of 75 percent of the provider's 
customary charge to the general public. 



Statutory Authority G.S. 108A-25(b); S.L. 1985, c. 
479, s. 86. 

.0404 OTHER SERVICES PERFORMED 
BY PHYSICIANS/OTHER 
PRACTITIONERS 

A maximum fee is established for other services 
performed by physicians and other practitioners 
and is applicable to all specialties and settings in 
which the service is rendered. Payment is equal to 
the lower of the maximum fee or the provider's 
customary charge to the general public for the 
particular service rendered. 
Fees for office services, hospital services, nurs- 
ing home services, consultations, and obstetric 
services are derived from the standard fees that 



141 



15} 



January 1 based on the forecast of the 
gross national product (GNP) implicit 
price deflator, but not to exceed the 
percentage increase approved by the 
North Carolina General Assembly. 
Fees for new services are established 
based on the fees for similar existing 
services. If there are no similar services 
the fee is established at 75 percent of 
estimated average charge. 
Fees for particular services can be in- 
creased based on administrative review if 
it is determined that the service is essen- 



tial to the health needs of Medicaid recip- 
ients, that no alternative treatment is 
available, and that a fee adjustment is 
necessary to maintain physician participa- 
tion at a level adequate to meet the needs 
of Medicaid recipients. A fee may also 
be decreased based on administrative 
review if it is determined that the fee 
may exceed the Medicare allowable 
amount for the same or similar services, 



were established for all specialties effective 
January 1, 1988. 

(2) Fees for all services are established by 
applying the following method to the fees 
in effect on May 1, 1989: 

(a) The higher of the inpatient or outpatient 
fee is selected for each service within 
each specialty and the weighted average 
of this amount is computed among all 
specialties. The average js weighted by 
the number of services billed by each 
specialty in 1988. 

(b) The weighted average fee js then in- 
creased by fO percent. 

(3) Annual fee increases are applied each 



or if the fee is higher than Medicaid fees 
for similar services, or if the fee is too 
high in relation to the skills, time, and 
other resources required to provide the 
particular service. 

Statutory Authority G.S. 108A-25(b); S.L. 1985. c. 
479. s. 86. 

SUBCHAPTER 26N - DRUG USE REVIEW 
(DUR) 

SECTION .0100 - DRUG USE REVIEW 
BOARD 

.0101 APPLICABILITY 

The Drug Use Review will apply to Medicaid 
covered outpatient drugs that are billed directly to 
the North Carolina Medicaid program as pharmacy 
covered services. Covered outpatient drugs dis- 
pensed by Health Maintenance Organizations who 
have a contract with the Division of Medical 
Assistance to provide services to Medicaid recipi- 
ents for a set monthly fee will not be subject to the 
requirements of this Section. If a drug is adminis- 
tered to a Medicaid recipient by a health care 
provider who is licensed to administer such drugs, 
the prospective portion of the Drug Use Review in 
this Section does not apply. The Division of 
Medical Assistance has the option to exempt 
nursing facility patients from the retrospective 
portion of the Drug Use Review. If a nursing 



. 



7:14 NORTH CAROLINA REGISTER October 15, 1992 



1401 



PROPOSED RULES 



facility is determined to be out of compliance with 
the drug regimen review procedures prescribed for 
such facilities m regulations implementing section 
1919 of the Social Security Act, currently at 
section 483.60 of title 42^ of the Code of Federal 
Regulations, the retrospective portion of the Drug 
Use Review requirements of this Section will 
apply. 

Authority G.S. 108-68; Social Security Act Section 

1927(g). 

.0102 ESTABLISHMENT 

The Division of Medical Assistance will establish 
a Drug Use Review Board. 

Authority G.S. 108-68; Social Security' Act Section 

1927(g). 

.0103 MEMBERSHIP 

(a) The Board shall consist of the Division of 
Medical Assistance Drug Use Review Coordinator, 
five licensed and actively practicing physicians, 
five licensed and actively practicing pharmacists, 
and at least two additional individuals with knowl- 
edge and expertise in one or more of the follow- 
ing: 



01 
11) 



the clinically appropriate prescribing of 
Medicaid covered outpatient drugs; 
the clinically appropriate dispensing and 
monitor ing of M edic aid cove red outpa- 
tient drugs; 

drug use review, evaluation, and inter- 
vention; 

(4) medical quality assurance, 
(b) The North Carolina Pharmacy Association, 
the North Carolina Medical Society, and the Old 
North State Medical Society will be asked to make 
nominations for some of the positions on the 
Board . The Director reserves the right to accept 
or reject nominations received. 



will be elected by his peers. Beginning with 
elections held in 1994, the term of the Chairmen 
will be one year. Beginning in 1994, membership 
on the Board of at least one previous year will be 
required to establish eligibility for serving as the 
Chair. 

Authority' G.S. 108-68; Social Security Act Section 

1927(g). 

.0106 ACTIVITIES 

(a) The activities of the Drug Use Review Board 
shall include but are not limited to making recom- 
mendations for rules to the Division Directors for 
Medicaid recipients for the following; 

(1) retrospective review of Medicaid claims 
information for drug therapy problems; 

(2) application of standards for prospective 
and retrospective Drug Use Review; 

(3) ongoing interventions for physicians, 
pharmacists, and recipients targeted 
toward therapy problems identified in 
the course of Medicaid retrospective 
drug use reviews; 

(4) preparation of an annual report to the 
Division of Medical Assistance on the 
Drug Use Review process; 

(5) programs to educate pharmacists and 
practitioners on common drug therapy 
problems identified in the Medicaid 
drug use reviews with the aim of im- 
proving prescribing or dispensing prac- 
tices. 

(b) The criteria and standards for the drug 
therapy review adopted by the Division upon 
recommendation by the Drug Use Review Board 
will be available to pharmacists, physicians, and 
the general public. 

Authority G.S. 108-68; Social Security Act Section 
1927(g). 



Authority G.S. 108-68; Social Security' Act Section 

1927(g). 

.0104 TERMS OF MEMBERSHIP 

The term of membership beginning with appoint- 
ments made in 1993 will be two years. 

Authority G.S. 108-68; Social Security Act Section 
1927(g). 

.0105 CHAIRMEN 

One pharmacist and one physician shall serve as 
Co-Chairmen of the Board. Each Co-Chairman 



.0107 RESPONSIBILITIES 

The Drug Use Review Board does not have rule 
making authority. The Division of Medical Assis- 
tance has the authority to reject recommendations 
of the Drug Use Review Board. In the event of 
such rejections. Division of Medical Assistance 
will notify the Drug Use Review Board, in writ- 
ing, of the reasons for its action. 

Authority G.S. 108-68; Social Security Act Section 

1927(g). 

SECTION .0200 - PROSPECTIVE DRUG 



1402 



7:14 NORTH CAROLINA REGISTER October 15, 1992 



PROPOSED RULES 



REVIEW 

.0201 OFFER TO COUNSEL 

At the time that a prescription for a Medicaid 
covered outpatient drug is dispensed, the pharma- 
cist must inform the Medicaid recipient, or his 
representative, that the pharmacist is available to 
discuss at least the following information unless in 
the professional judgment of the pharmacist or the 
patient's physician it is deemed inappropriate: 

(1) the name and description of the medica- 
tion; 

(2) the route, dosage form, dosage, route of 
administration, and duration of drug 
therapy; 

(3) special directions and precautions for 
preparation, administration and use by 
the patient; 

(4) common severe side or adverse effects or 
interactions and therapeutic contraindica- 
tions that may be encountered, including 
their avoidance, and the action required 
if they occur; 

(5) techniques for self-monitoring drug thera- 

(6) proper storage; 

(7) prescription refill information; 

(8) action to be taken in the event of a 
missed dose. 

Authority G.S. 108-68: Social Security Act Section 
1927(g). 

.0202 COUNSELING 

Unless the Medicaid recipient or his representa- 
tive refuses counseling, the counseling must be 
done by a pharmacist. All counseling shall be 
done [n a manner most appropriate to the specific 
patient and subject to the professional judgment of 
the pharmacist. 

Authority G.S. 108-68; Social Security Act Section 

1927(g). 



each new prescription to identify potential indica- 
tions of adverse risk regarding the prescription. If 
the Medicaid recipient or his representative choos- 
es to provide this information, the pharmacist must 
retain the information so it can be used currently 
and at the time of future dispensing. 

Authority G.S. 108-68; Social Security Act Section 

1927(g). 

.0204 DRUG THERAPY REVIEW/ 
COORDINATION W/ 
PRESCRIBING PHYSICIAN 

At the time of dispensing each new Medicaid 
prescription, the pharmacist will use the informa- 
tion provided by the client currently or in the 
pharmacy record to identify potential indications of 
adverse risk for the Medicaid recipient if he takes 
the prescribed drug. The pharmacist will use 
either software or written procedures following 
guidelines issued by the Drug Use Review Board 
to review therapeutic duplication, drug-disease 
contraindications, drug-drug interactions, incorrect 
drug dosage or duration of drug treatment, and 
drug allergy interactions. The pharmacist must 
take steps to resolve any problem found including 
contacting the physician when necessary. 

The pharmacist must notify the prescribing 
physician if the Medicaid recipient refuses the 
prescription. 

Authority G.S. 108-68; Social Security Act Section 

1927(g). 

.0205 CONFIDENTIALITY 

The pharmacist must guard the confidentiality of 
the recipient's individual history information while 
he is securing the information, when retaining k 
for future use, and when providing counseling to 
the recipient. 

Authority G.S. 108-68; Social Security Act Section 

1927(g). 



.0203 INDIVIDUAL HISTORY 

The pharmacist must ask the recipient or his 
representative if he is willing to provide the phar- 
macist with individual history information to 
include name, address, telephone number, gender, 
age, diagnoses, known allergies and drug reac- 
tions, and a comprehensive list of current medica- 
tions and relevant devices. The pharmacist must 
explain to ffie recipient or his representative that 
this information will only be used to conduct a 
drug therapy review at the time of dispensing of 



.0206 DOCUMENTATION 

REQUIREMENTS AND 
COMPLIANCE MONITORING 

The Division of Medical Assistance will identify 
possible non-compliance with the prospective Drug 
Use Review screening through the use of quarterly 
retrospective Drug Use Review profiles to identify 
pharmacies showing high incidences of therapeutic 
problems detectable by prospective Drug Use 
Review screening. The Division of Medical 
Assistance Drug Use Review Coordinator will 



7:14 NORTH CAROLINA REGISTER October 15, 1992 



1403 



PROPOSED RULES 



discuss with the individual pharmacist these indica- 
tions of possible non-compliance with the Medicaid 
prospective Drug Use Review. 

Authority G.S. 108-68; Social Security Act Section 

1927(g). 

SECTION .0300 - RETROSPECTIVE DRUG 
USE REVIEW 

.0301 SCREENING AND PATTERN 
ANALYSIS 

At least quarterly, the Medicaid drug claims, in 
conjunction with other Medicaid claims as needed 
for clinical purposes, will be subjected to screen- 
ing against predetermined standards approved by 
the Drug Use Review Board. The objective of the 
screening is to identify patterns of behavior involv- 
ing physicians, pharmacists, and individual Medic- 
aid recipients or patterns associated with specific 
drugs or groups of drugs. In addition, individual 
incidences of screen failure associated with a 
specific recipient will be identified for intervention 
alerts. 

Authority G.S. 108-68; Social Security Act Section 

1927(g). 

.0302 INTERVENTIONS 

The primary' objective of the retrospective Drug 
Use Review is to provide education to pharmacists 
and physicians, both individually and collectively, 
in order to improve prescribing and dispensing 
practices. The intervention and educational pro- 
grams will be developed by the Drug Use Review 
Board and will be updated as more information is 
available from the retrospective review process. 

The Drug Use Review Board may establish 
referral processes to the Board of Pharmacy, the 
Board of Medical Examiners, or the Division of 
Medical Assistance Program Integrity Section for 
individual pharmacists or physicians who continue 
to demonstrate patterns of prescribing or dispens- 
ing which put the Medicaid recipient at risk from 
drug therapy problems even after repeated warn- 
ings through Drug Use Review interventions. 

Authority G.S. 108-68; Social Security Act Section 
1927(g). 

.0303 COMPLIANCE MONITORLNG 

The physician's and pharmacist's responses to 
the interventions undertaken as a result of the 
retrospective Drug Use Review will be tracked. 
The Drug Use Review Board will establish selec- 



tion criteria for intensified review and monitoring 
of individual pharmacists and physicians. 

Authority G. S. 108-68; Social Security Act Section 

1927(g). 

IV otic e is hereby given in accordance with G.S. 
150B-21.2 that the DHR/Division of Medical 
Assistance intends to amend rule(s) cited as 10 
NCAC50B .0101. 

1 he proposed effective date of this action is 
January 4, 1993. 

1 he public hearing will be conducted at 1:30 
p.m. on November 17, 1992 at the North Carolina 
Division of Medical Assistance, 1985 Umstead 
Drive, Room 132, Raleigh, N.C. 27603. 

ixeason for Proposed Action: This amendment 
adds a coverage group of Qualified Working and 
Disabled Individuals (QWDI) as mandated by 
federal law 42 U.S.C. 1396a (a)(10) and 42 
U.S.C. 1396d (s). 

Ksomment Procedures: Written comments con- 
cerning this amendment must be submitted by 
November 17, 1992, to: Division of Medical 
Assistance, 1985 Umstead Drive, Raleigh, N.C. 
27603, ATTN. : Clarence Ervin, APA Coordinator. 
Oral comments may be presented at the hearing. 
In addition, a fiscal impact statement is available 
upon written request from the same address. 

CHAPTER 50 - MEDICAL ASSISTANCE 

SUBCHAPTER 50B - ELIGIBILITY 
DETERMINATION 

SECTION .0100 - COVERAGE GROUPS 

.0101 MANDATORY 

The following groups required by 42 U.S.C. 
1396a (a) (10) (A) (i) shall be eligible for Medic- 
aid: 

Recipients receiving AFDC. 
Deemed recipients of AFDC including: 
Individuals denied AFDC solely be- 
cause the payment amount would be 
less than ten dollars ($10.00), 



(1) 
(2) 
(a) 



1404 



7:14 NORTH CAROLINA REGISTER October 15, 1992 



PROPOSED RULES 



fb) Participants in AFDC work supplemen- 
tation programs approved in the AFDC 
State Plan, 

(c) Individuals deemed to be AFDC recipi- 
ents for four months following termina- 
tion of AFDC due to collection or 
increased collection of child support, 

(d) Individuals receiving transitional Med- 
icaid as described in 42 U.S.C. 1396s 
when AFDC eligibility is lost due to 
increased earnings, 

(e) Individuals for whom an adoption assis- 
tance agreements in effect or foster care 
maintenance payments are being made 
under Title IV E of the Social Security 
Act as described at 42 U.S.C. 673 (b). 

(3) Qualified pregnant women as defined at 
42 U.S.C. 1396d(n)(l). 

(4) Qualified children as defined at 42 
U.S.C. 1396d(n)(2). 

(5) Pregnant women, during a 60 day period 
following termination of the pregnancy, 
for pregnancy related and post partum 
services if they applied for Medicaid 
prior to termination of the pregnancy and 
were eligible on the date pregnancy is 
terminated. 

(6) Infants, born to a woman who was eligi- 
ble for and receiving Medicaid on the 
date of birth, for up to one year from the 
date of birth; as long as the mother re- 
mains eligible for Medicaid. 

(7) Aged, blind or disabled individuals who 
meet financial eligibility criteria more 
restrictive than those of the SSI program. 

(8) Individuals who meet the requirements 
under 42 U.S.C. 1382h(a) or (b)(1). 

(9) Blind or disabled individuals who were 
eligible in December 1973 as blind or 
disabled and who for each consecutive 
month since December 1973 continue to 
meet December 1973 eligibility criteria. 

(10) Individuals who were eligible in Decem- 
ber 1973 as aged, or blind, or disabled 
with an essential spouse and who, for 
each consecutive month since December 
1973, continue to live with the essential 
spouse and meet December 1973 eligibili- 
ty criteria. 

(11) Individuals who in December 1973 were 
eligible as the essential spouse of an 
aged, or blind, or disabled individual and 
who for each consecutive month since 
December 1973, have continued to live 
with that individual who has met Decem- 



ber 1973 eligibility criteria. 

(12) Qualified Medicare Beneficiaries de- 
scribed at 42 U.S.C. 1396d(p). 

(13) Pregnant women whose countable income 
does not exceed the percent of the in- 
come official poverty line, established at 
42 U.S.C. 1396a(l)(2), for pregnancy 
related services including labor and deliv- 
ery. 

(14) Children born after September 30, 1983 
and who are under age 19 who are de- 
scribed at 42 U.S.C. 1396a(l). 

(15) Qualified Disabled and Working Individ- 
uals described at 42 U.S.C. 1396d(s). 

Authority G.S. 108A-54; 42 U.S.C. 1396a(a)(10); 
42 U.S.C. 1396a(f); 42 C.F.R. 435.110; 42 
C.F.R. 435.112; 42 C.F.R. 435.113; 42 C.F.R. 
435.114; 42 C.F.R. 435. 115; 42 C.F.R. 435.116; 
42 C. F. R. 435. 1 1 7; 42 C F. R. 435. 1 1 8; 42 C. F. R. 
435.121; 42 C.F.R. 435.131; 42 C.F.R. 435.132; 
42 C.F.R. 435.133. 

TITLE 11 - DEPARTMENT OF 
INSURANCE 

I\otice is hereby given in accordance with G.S. 
150B-21.2 that the N.C. Department of Insurance 
intends to adopt rules cited as 11 NCAC 1 .0109, 
.0431 - .0432. 

I he proposed effective date of this action is 
January 1 . 1993. 

Instructions on How to Demand a Public Hearing 
(must be requested in writing within 15 days of 
notice): A request for a public hearing must be 
made in writing, addressed to Ellen K. Sprenkel, 
N. C. Department of Insurance, P. O. Box 26387, 
Raleigh, N.C. 27611. This request must be re- 
ceived within 15 days of this notice. 

Reason for Proposed Action: 

II NCAC 1 .0109 - To obviate the need for redun- 
dant definitions in and questions about interpreta- 
tions of the provisions of Title 11. 

11 NCAC 1 .0431 - To clarify the hearing proce- 
dures for ratemaking for personal autotnobile, 
homeowners, and workers' compensation insur- 
ance. 



7:14 NORTH CAROLINA REGISTER October 15, 1992 



1405 



PROPOSED RULES 



11 NCAC 1 .0432 - To provide for hearing rules 
for the NC Manufactured Housing Board in com- 
pliance with G. S. 150B-38(h). 

Comment Procedures: Written comments may he 
sent to Ellen K. Sprenkel, P. O. Box 26387, Ra- 
leigh, N.C. 27611. Anyone having questions 
should call Bill Hale at (919) 733-4529. 

CHAPTER 1 - DEPARTMENTAL RULES 

SECTION .0100 - GENERAL PROVISIONS 

.0109 DEFLNITIONS AND RULES OF 

CONSTRUCTION FOR THIS TITLE 

(a) The definitions contained in G.S. 58-1-5 are 
incorporated in this Title by reference. 

(b) The rules of construction contained in G.S. 
12-3 apply in the construction of this Title. 

Statutory Authority G.S. 58-2-40(1). 



SECTION .0400 - ADMINISTRATIVE 
HEARLNGS 



.0431 RATEMAKLNG PROCEDURES 
FOR RATE BUREAU FILLNGS 

Hearing procedures for rate filings made by the 
North Carolina Rate Bureau shall be governed by 
the provisions of G.S. 58. Article 36 and G.S. 
150B-39 through 150B-41. 

Statutory Authority G.S. 58-2-40(1); 58-36-1; 58- 
36-10; 58-36-15; 58-36-20; 58-36-70; 150B-38. 

.0432 MANUFACTURED HOUSING BOARD 
HEARLNGS 

The provisions of JJ. NCAC \_ .0413 through U 
NCAC 1 .0430 apply to contested case hearings 
held by the North Carolina Manufactured Housing 
Board under G.S. 143-143.13 and 143-143.14. 

Statutory Authority G.S. 58-2-40(1); 143-143.13; 
143-143.14; 150B-38(h). 



j: '<<:<■.<-.<.:•.< .-i .-: .< 



>C X * A 



l\ otice is hereby given in accordance with G.S. 
I50B-21.2 that the N. C. Department of Insurance 
intends to amend rules cited as 1 1 NCA C 5 A . 0301 
- . 0303. 



1 he proposed effective date of this action is 
January 1, 1993. 

1 he public hearing will be conducted at 2:00 
p.m. on November 19, 1992 at the Fire and Res- 
cue Services Division, 111 Seaboard Avenue, 
Conference Room, Raleigh, N.C. 27604. 

Reason for Proposed Action: To update and 
clarify provisions about the Firemen 's Relief Fund 
administration. 

Isomment Procedures: Written comments may be 
sent to Kathy Lohr, Fire & Rescue Services Divi- 
sion, P. O. Box 26387, Raleigh, N. C. 27611. Oral 
presentations may be made at the public hearing. 
Anyone having questions should call Kathy Lohr at 
(919) 733-2142 or Ellen Sprenkel at (919) 733- 
4529. 

CHAPTER 5 - FIRE AND RESCUE 
SERVICES DIVISION 

SUBCHAPTER 5A - FIRE AND RESCUE 

SECTION .0300 - FIREMEN'S RELIEF 
FUND 

.0301 ELIGIBLE MEMBERS 

Each fire department wfee that wishes to be 
eligible to receive funds from the Firemen's Relief 
Fund shall fee serve a rated fire insurance district 
and a member members of the North Carolina 
State Firemen's Association. Prior to Before 
January 1 . each year, the North Carolina State 
Firemen's Association shall certify to this division 
an up to date provide the Fire and Rescue Services 
Division with a certified, current list of all mem- 
ber fire departments in good standing, the balance 
in each local fund, and the amount of bond cover- 
ing each local fundr a and verification that a 
financial statement was submitted. The State may 
provide a blanket bond for local government 
treasurers. 

Statutory Authority G. S. 58-2-40(1); 58-84-30; 58- 
84-40. 

.0302 CERTIFICATION OF ELIGIBILITY 

The clerk or finance officer of each city, county, 
or s anitary di s trict which i s served by an organized 
fire department shall, on or b e fore October 31, of 



1406 



7:14 NORTH CAROLINA REGISTER October 15, 1992 



PROPOSED RULES 



each year, make and file with the Commissioner of 
Insurance his certification form required by G.S. 
58-84-45 shall be entitled "Report of Fire Condi- 
tions" which s hall include the following informa 
tion for each fire department serving that unit of 
l ocal government: and shall, in addition to the 
information required by G.S. 58-84-45, include the 
following: 

(1) The name of the city, fire district, or 
sanitary district; 

(2) Current personnel roster, type and 
amount of equipment, and type of water 
supply used for fire suppression; 

(3) Names of the "Board of Trustees of the 
Local Firemen's Relief Fund"; 

(4) Identity of the Treasurer of the Local 
Firemen's Relief Fund; and 

(§) Amount of bond on the trea s urer; 

{6)15} Membership status in the North Carolina 
State Firemen's Association; 

Statutory Authority G.S. 58-2-40(1); 58-84-45. 

.0303 ADMINISTATION OF 

FIREMEN'S RELIEF FUND 

(a) The Fire and Rescue Services Division shall 
compile and maintain accurate records utilizing 
both computer and paper records, including but 
not limited to the following information: 

(1) Certifications of the "Report of Fire 
Conditions" filed by the local clerks or 
finance officers; 

(2) Certifications of the member fire de- 
partments, the fund balance of each 
fund, the bond amount covering each 
fund, filed by the North Carolina State 
Firemen's Association each year; 

(3) Amount of Firemen's Relief Fund tax 
assigned by the Technical Operations 
Financial Compliance Division of the 
North Carolina Department of Insur- 
ance to each city, county fire district, 
and sanitary district^ 

(b) If a fire department dissolves, the following 
procedures apply: 

(1) If a neighboring fire department elects 
to expand its boundaries to include the 
area served by the dissolved fire depart- 
ment, with the approval of the Depart- 
ment of Insurance, the Firemen's Relief 
Fund account will be transferred to the 
expanding fire department. 

(2) If no neighboring fire department elects 
to include the dissolved fire 
department's territory into its own, the 



dissolved fire department will be shown 

as "disqualified" according to G.S. 58- 

84-40, 58-84-45, and 58-84-50. 

(c) The Division then shall certify to the Budget 

Division of the North Carolina Department of 

Insurance the eligibility of each city, county fire 

district, and sanitary district to receive annual 

payments from the fund. Fire department checks 

will be disbursed by the Department of Insurance 

to the finance officer of the local government 

entity. 

Statutory Authority G. S. 58-2-40(1); 58-84-25; 58- 
85-1. 

Notice is hereby given in accordance with G.S. 
150B-21.2 that the N. C. Department of Insurance 
intends to repeal rule(s) cited as 11 NCAC 5 A 
.0403 - .0404. 

1 he proposed effective date of this action is 
January 1. 1993. 

1 he public hearing will be conducted at 2:00 
p.m. on November 19, 1992 at the Fire & Rescue 
Services Division, 111 Seaboard Avenue, Confer- 
ence Room, Raleigh, N. C. 27604. 

Ixeason for Proposed Action; Rules are obsolete. 

Ksommenl Procedures; Written comments may be 
sent to Kathy Lohr, Fire and Rescue Services 
Division, P.O. Box 26387, Raleigh, N.C. 27611. 
Oral presentations may be made at the public 
hearing. Anyone having questions should call 
Kathy Lohr at (919) 733-2142 or Ellen Sprenkel at 
(919) 733-4529. 

CHAPTER 5 - FIRE AND RESCUE 
SERVICES DIVISION 

SUBCHAPTER 5A - FIRE AND RESCUE 

SECTION .0400 - ADMTNISTRATION OF 
OTHER FUNDS 

.0403 RURAL VOLUNTEER FIRE 
DEPARTMENT FUND 

The Rural Volunt e er Fir e Departm e nt Fund s hall 
be administer e d in accordanc e with the provision s 



7:14 NORTH CAROLINA REGISTER October 15, 1992 



1407 



PROPOSED RULES 



of NCGS 118 50. 

Statutory Authority G.S. 118-50. 

.0404 RESCUE SQUAD WORKERS' RELIEF 
FUND 

The Rescue Squad Workers' Relief Fund shall bo 
admini s tered in accordance with the provisions of 
NCGS 118 61. 

Statutory Authority G.S. 118-61. 

i\otice is hereby given in accordance with G.S. 
150B-21.2 that the N. C. Department of Insurance 
intends to adopt rules cited as 1 1 NCA C 5 A . 0601 - 
.0604: and .0701 -.0705. 

1 he proposed effective date of this action is 
January 1. 1993. 

1 he public hearing will be conducted at 2:00 
p.m. on November 19, 1992 at the Fire & Rescue 
Services Division, 111 Seaboard Avenue, Confer- 
ence Room, Raleigh, N.C. 27604. 

Reason for Proposed Action: 

.0601 -.0604 - To provide procedures for the 
awarding of equipment grant finds to volunteer 
fire departments. 

.0701 -.0705 - To provide procedures for the 
awarding of equipment grant funds to rescue and 
rescue/EMS squads. 

K^omment Procedures: Written comments may be 
sent to Kathy Lohr, Fire & Rescue Services Divi- 
sion, P. O. Box 26387. Raleigh. N. C. 27611. Oral 
presentations may be made at the public hearing. 
Anyone having questions should call Kathy Lohr at 
(919) 733-2142 or Ellen Sprenkel at (919) 733- 
4529. 



SECTION .0600 - VOLUNTEER FIRE 
DEPARTMENT FUND 

.0601 DEFINITIONS 

As used [n this section: 

( 1 ) "Department" means a volunteer fire 



department situated in the State of North 
Carolina. 

(2) "Division" means the Fire and Rescue 
Services Division of the North Carolina 
Department of Insurance. 

(3) "Fund" means the Volunteer Fire Depart- 
ment Fund created in G.S. 58-87-1 . 

Statutory Authority G.S. 58-2-40(1 ): 58-87-1 . 

.0602 FIRE DISTRICT RATEVG 
CERTIFICATION 

If a department is actively working with the 
Division to obtain its fire district rating certifica- 
tion as of March L, it may apply for a grant. In 
order to receive a grant, the department must 
obtain its fire district rating certification within 60 
days after the Division has determined that the 
department has otherwise satisfied the requirements 
of G.S. 58-87-1 and this Section. 

Statutory Authority G.S. 58-2-40(1). 

.0603 REQUIREMENTS 

(a) Application forms will be mailed by the 
Division to all known departments by January 2 of 
each year. 

(b) Any application received by the Division that 
is incorrect or incomplete will be returned to the 
department with a request that the correct or 
complete information be sent to the Division 
within 10 business days after receipt by the depart- 
ment. The failure by the department to return the 
requested correct or complete information will 
result [n the forfeiture by the department of its 
eligibility for a grant during that current grant 
cycle. 

(c) Applications must be mailed to the Division 
and be postmarked no later than March _L Appli- 
cations bearing postmarks later than March ]_ are 
disqualified. The names of grant recipients will be 
announced on May 15. In the event May 15 falls 
on a weekend, the announcement will be made on 
the following Monday. 

(d) The Division may approve all or part of an 
application. 

(e) If the application includes a request for a 
motor vehicle, the vehicle specifications and, if 
used, the previous year's maintenance records 
must accompany the application. 

(f) The following documents must accompany a 
grant application: 

(1 ) A contract showing an agreement be- 
tween the department and a county for 
the department to provide fire protec- 



1408 



7:14 NORTH CAROLINA REGISTER October 15, 1992 



PROPOSED RULES 



tion to a district; 

(2) An active roster comprising a list of 
members meeting the training require- 
ments in G.S. 58-86-30; 

(3) A charter showing the incorporation of 
the department as a nonprofit corpora- 
tion; 

(4) A statement verifying the population 
that the department serves; 

(5) A financial statement showing the fiscal 
status of the department; and 

(6) A statement verifying that the depart- 
ment is financially able to match the 
grant. 

(g) Agreements between departments and ven- 
dors, payment agreements, and equipment invoices 
must be received by the Division no later than 
September 30 following the announcement of grant 
recipients. Departments submitting incorrect 
invoices, such as sales orders, acknowledgements, 
and packing slips, before September 30 will be 
contacted by the Division and given 10 business 
days to submit correct documents. The failure of 
any department to comply will result |n the depart- 
ment forfeiting rt eligibility for a grant from the 
Fund. Equipment or capital improvements that are 
ordered by a department before May 15 or equip- 
ment that is back-ordered by a department on or 
before September 30 may not be funded by grants 
from the Fund. 

(h) Equipment purchased with grants is subject 
to periodic inspection by Division personnel. 

Statutory Authority G. S. 58-2-40(1). 

.0604 OTHER GRANT CRITERIA 

In addition to criteria in G.S. 58-87-1, in award- 



.0701 DEFINITIONS 

As used in this section: 

01 



'Division" means the Fire and Rescue 



ing grants the Division shall consider the following 
criteria in relation to each department: 

(1) number and age of vehicles; 

(2) population served; 

(3) county per capita income; 

(4) source of department funding; 

(5) money on hand; 

(6) protective equipment requested; 

(7) miscellaneous equipment requested; 

(8) vehicles requested; 

(9) capital improvements requested; and 

( 10) current fire insurance rating. 

Statutory Authority G.S. 58-2-40(1); 58-87-1. 



SECTION .0700 - VOLUNTEER RES- 
CUE/EMS FUND 



ill 

13] 



Services Division of the North Carolina 
Department of Insurance. 
"Fund" means the Volunteer Res- 
cue/EMS Fund created in G.S. 58-87-5. 



"Unit" means a volunteer rescue or res- 
cue/EMS unit situated in the State of 
North Carolina. 



Statutory Authority G.S. 58-2-40(1 ); 58-87-5. 

.0702 ALS CERTIFICATION 

If a unit js actively working with the Office of 
Emergency Medical Services (OEMS) to obtain its 
Advanced Life Support (ALS) certification as of 
October J^ that unit may apply for a grant. In 
order to receive a grant, the unit must obtain its 
ALS certification from OEMS within 60 days after 
the Division has determined that the unit has 
otherwise satisfied the requirements in G.S. 58-87- 
5 and this Section. 

Statutory Authority G.S. 58-2-40(1); 58-87-5. 

.0703 REQUIREMENTS FOR UNITS 
REQUIRED TO MATCH 
GRANTS 

(a) Application forms will be mailed by the 
Division to all known units by August \ of each 
year. 

(b) Any application received by the Division that 
js incorrect or incomplete will be returned to the 
unit with a request that the correct or complete 
information be sent to the Division within 10 
business days after receipt by the unit. The failure 
by the unit to return the requested correct or 
complete information will result jn the forfeiture 
by the unit of its eligibility for a grant during that 
current grant cycle. 

(c) Applications must be mailed to the Division 
and be postmarked no later than October _L 
Applications bearing postmarks later than October 
i are disqualified. The names of the grant recipi- 
ents will be announced on December 15. In the 
event December 15 falls on a weekend, the an- 
nouncement will be made on the following Mon- 
day. 

(d) The Division may approve all or part of an 
application. 

(e) If the application includes a request for a 
vehicle, the vehicle specifications and, if used, the 
previous year's maintenance records must accom- 
pany the application. 



7:14 NORTH CAROLINA REGISTER October 15, 1992 



1409 



PROPOSED RULES 



(f) The following documents must accompany a 
grant application; 

(1) A contract showing that a county recog- 
nizes the unit as providing rescue or 
rescue/EMS services to a specified 
district; 

A charter showing the incorporation of 
the unit as a nonprofit corporation; 
An active roster comprising a Hst of 
unit members; 

A statement verifying that the unit is 
financially able to match the amount of 
the grant; 



01 
01 

14} 



(SI 

(6) 



A financial statement showing the fiscal 
status of the unit; and 



A rescue provider statement, which 
may be submitted in lieu of the contract 
required by Subparagraph (1) of this 
Paragraph. 
(g) Agreements between units and vendors, 
payment agreements, and equipment invoices must 
be received by the Division no later than April 30. 
Units submitting incorrect invoices, such as sales 
orders, acknowledgements, and packing slips, 
before April 30 will be contacted by the Division 
and given 10 business days to submit the correct 
documents. The failure of any unit to comply will 
result in the unit forfeiting its eligibility for a grant 
from the Fund. Equipment or capital improve- 
ments that are ordered by a unit before December 
15 or equipment that js back-ordered by a unit on 
or before April 30 may not be funded by grants 
from the Fund. 

(h) Equipment purchased with grants is subject 
to periodic inspection by Division personnel. 

Statutory^ Authority G.S. 58-2-40(1 ); 58-87-5. 

.0704 REQUIREMENTS FOR UNITS NOT 
REQUIRED TO MATCH GRANTS 

Units that are not required to match funds must 
comply with _U NCAC 5A .0703 except for 
Subparagraph (f)(4) of that Rule, which requires 
the filing of a statement verifying that a unit is 
financially able to match a grant. 



city or county; 

(3) number and age of vehicles; 

(4) county per capita income; 

(5) unit funding sources; 

(6) money on hand; 

(7) protective equipment requested; 

(8) miscellaneous equipment requested; and 

(9) capital improvements requested. 

Statutory Authority G.S. 58-2-40(10; 58-87-5. 






^4:4lf^^$^4E 



Notice is hereby given in accordance with G.S. 
150B-21. 2 that the N. C. Department of Insurance 
intends to amend rule cited as 1 1 NCA C 6A . 0802. 

1 he proposed effective date of this action is 
January 1, 1993. 

Instructions on How to Demand a Public Hearing 
(must be requested in writing within 15 days of 
notice): A request for a public hearing must be 
made in writing, addressed to Ellen K. Sprenkel, 
N.C. Department of Insurance, P.O. Box 26387, 
Raleigh, N.C. 27611. 

Keason for Proposed Action: To extend the 
continuing education requirements to adjusters and 
to require the law update courses every other year. 

i^omment Procedures: Written comments may be 
sent to Ellen K. Sprenkel, P. O. Box 26387, Ra- 
leigh, N.C. 27611. Anyone having questions- 
should call Tony Higgins at (919) 733-4935 or 
Ellen Sprenkel at (919) 733-4529. 

CHAPTER 6 - AGENT SERVICES 
DIVISION 

SUBCHAPTER 6A - AGENT SERVICES 
DIVISION 



Statutory Authority G.S. 58-2-40(1); 58-87-5. 

.0705 OTHER GRANT CRITERIA 

In addition to criteria in G.S. 58-87-5 and other 
Rules in this Section, in awarding grants the 
Division shall consider the following criteria in 
relation to each unit: 

( 1 ) number of personnel; 

(2) personnel salary paid by the unit or the 



SECTION .0800 - CONTINUING 
EDUCATION 

.0802 LICENSEE REQUIREMENTS 

(a) Life, accident, and health licensees shall 
obtain 12 ICECs during each calendar year in 
approved life, accident, and health courses . 
cours e s including th e mandatory s tatut e and 
rul e updat e . 



141 



7:14 NORTH CAROLINA REGISTER October 15, 1992 



PROPOSED RULES 



(b) Fire and casualty licensees shall obtain 12 
ICECs during each calendar year in approved fire 
and casualty courses, — including the mandatory 
statute and rule update, courses. 

(c) Accident and health licensees shall obtain 12 
ICECs during each calendar year in approved 
accident and health courses, including th e man 
datory statute and rule update, courses. 

(d) Any person holding more than one license to 
which this Section applies shall obtain 18 ICECs 
during each calendar year, including the mandato 
ry statute and rule update and a minimum of six 
ICECs for each kind of license. 

(e) An instructor may receive up to twice the 
ICECs received by the students for some courses 
but may receive no ICECs for others, in the 
discretion of the Commissioner. 

(f) Licensees shall not receive ICECs for the 
same course more often than one time in any three 
calendar year period except when there are major 
revisions within the course. The Commissioner 
shall determine whether the revisions are substan- 
tial enough to qualify for additional ICECs within 
a three calendar year period. 

(g) Licensees do not have to obtain ICECs for 
the calendar year in which they are initially li- 
censed. 

(h) Licensees shall receive ICECs for a course 
only for the calendar year in which the course is 
completed. Any course requiring an examination 
shall not be considered completed until the licensee 
passes the examination. 

(i) Licensees shall not receive ICECs for courses 
completed prior to January 1, 1991. 

(j) Licensees shall maintain records of all ICECs 
for three years following the obtaining of such 
ICECs. which records shall be available for in- 
spection upon the Commissioner's request. 

(k) Nonresident licensees who meet continuing 
education requirements in their home states meet 
the continuing education requirements of this 
Section. Nonresident licensees whose home states 
have no continuing education requirements shall 
meet the requirements of this Section, except for 
the mandatory statute and rule update. 

(1) Licensees will be required to complete only 
the mandatory statute and rule update each year 
prescribed in Paragraph (p) of this Rule if they: 

( 1 ) are age 65 or older; and 

(2) have been continuously licensed in the 
line of insurance for at least 25 years; 
and either 

(3) hold a nationally recognized profes- 
sional designation for the line of insur- 
ance. Acceptable designations include 



those listed in 1 1 NCAC 6A .0803 (a) 
and (b); or 
(4) meet the requirements of Subparagraphs 
(1) and (2) of this Paragraph and certify 
to the Department of Insurance annually 
they are inactive agency owners who 
neither solicit applications for insurance 
nor take part in the day to day opera- 
tion of the agency, 
(m) Courses completed prior to the issue date of 
a new license do not meet the requirements of this 
Section for that new license. 

(n) No credit will be given for courses taken 
before they have been approved by the Depart- 
ment. 

(o) Persons who hold adjuster licenses shall 
obtain 12 ICECs during each calendar year m 
approved Fire and casualty courses; including, in 
calendar year 1993 and each even-numbered 
calendar year thereafter, the mandatory statute and 
rule update required by Paragraph (p) of this Rule. 
As used in this Section, "licensee" includes a 
person who holds an adjuster license and who is 
required to comply with this Section. 

(p) In calendar year 1994 and in each even- 
numbered calendar year thereafter, each licensee 
shall complete an approved course that comprises 
information about and instruction in insurance and 
insurance-related statutes and administrative rules, 
including recent changes or developments in those 
statutes and rules. The Commissioner may also 
approve courses that also include relevant court 
decisions. 

Statutory Authority G.S. 58-33-130. 

Iiotice is hereby given in accordance with G.S. 
150B-21.2 that the N.C. Department of Insurance 
intends to amend rule cited as 11 NCAC 16 .0205. 

1 he proposed effective date of this action is 
January 1, 1993. 

Instructions on How to Demand a Public Hearing 
(must be requested in writing within 15 days of 
notice): A request for a public hearing must be 
made in writing, addressed to Ellen K. Sprenkel, 
N. C Department of Insurance, P. O. Box 26387. 
Raleigh, N.C. 27611. This request must be re- 
ceived within 15 days of this notice. 



7:14 NORTH CAROLINA REGISTER October 15, 1992 



1411 



PROPOSED RULES 



tveason for Proposed Action: The amendment 
clarifies data requirements for individual accident 
and health rate revisions submitted by insurers. 

Comment Procedures: Written comments may be 
sent to Ellen K. Sprcnkel, P. O. Box 26387, Ra- 
leigh, N.C. 27611. Anyone having questions 
should call Walter James at (919) 733-3284. 



CHAPTER 16 



ACTUARIAL SERVICES 
DIVISION 



SECTION .0200 - INDIVIDUAL ACCIDENT 
AND HEALTH INSURANCE 

0205 DATA REQUIREMENTS FOR RATE 
REVISION SUBMISSION 

With respect to any individual accident and 
health insurance policy governed by Articles 1 
through 64 of Chapter 58 for which an adjustment 
of premium rate is allowed by law, the insurer 
shall submit an actuarial memorandum describing 
and demonstrating the development of any request- 
ed premium rate revision. The actuarial memoran- 
dum shall contain a subsection clearly identified as 
"Additional Data Requirements." The initial rate 
revision filing shall be submitted to and stamped 
received by the Department's Life and Health 
Division. An insurer shall submit all data required 
by this Rule within 45 days after the date that the 
initial rate revision filing is stamped received. 
Subsequent data submissions on incomplete initial 
rate revision filings shall be made directly to the 
Department's Actuarial Services Division within 
the 45 day period. An insurer may continue to 
submit data in accordance with data submission 
procedures followed before the effective date of 
this Rule for a period not to exceed one year after 
the effective date of this Rule if an authorized 
officer of the insurer certifies to the Commissioner 
that the insurer's current information system 
cannot assemble data as required by this Rule. 
The data required in the "Additional Data Require- 
ments" subsection shall include: 

( 1 ) Identification of the submitted data as 
North Carolina or countrywide and con- 
sistent use of this data identification 
throughout this Section. 

(2) Identification of all policy forms by 
approved North Carolina policy form 
number. 

(3) The month, year, and percentage amount 
of all previous rate revisions. 



(4) The month and year that the rate revision 
is scheduled to be implemented (hereinaf- 
ter referred to as the "implementation 
date"). 

(5) The type of renewability provision con- 
tained in each policy form, e.g. guaran- 
teed renewable. 

(6) The type of coverage provided by each 
policy form, e.g. medical expense. 

(7) The National Association of Insurance 
Commissioners minimum guideline loss 
ratio and, if different, the insurer's mini- 
mum guideline loss ratio. 

(8) The average annual premium for North 
Carolina and countrywide before and 
after the implementation of the rate revi- 
sion. 

(9) The number of North Carolina and coun- 
trywide policyholders affected by the rate 
revision. 

(10) The requested rate revision percentage 
attributable to experience. 

(11) The requested rate revision percentage 
attributable to changes in benefits pro- 
mulgated by Medicare, if applicable. 

(12) Identification and actuarial justification of 
all groupings of policy forms. 

(13) The historical calendar year earned pre- 
mium subdivided by duration and ex- 
pressed on an actual and a current premi- 
um rate basis for the period of time from 
the earliest date that experience is record- 
ed to the most recent date experience is 
recorded. 

(14) The "expected" incurred loss ratios for 
duration one through the duration select- 
ed by the insurer which does not exceed 
the duration coinciding with the fifth year 
following the implementation date. 

(15) The "expected" lapse rates for duration 
one through the duration selected by the 
insurer which does not exceed the dura- 
tion coinciding with the fifth year follow- 
ing the implementation date. 

(16) The "actual" lapse rates for duration one 
through the duration coinciding with the 
calendar year for which the most recent 
experience is recorded. 

(17) The historical calendar year incurred 
claims, for other than Medicare supple- 
ment insurance, covering the period of 
time from the earliest date that experi- 
ence is recorded to the most recent date 
experience is recorded. 

(18) The historical calendar year incurred 



1412 



7:14 NORTH CAROLINA REGISTER October 15, 1992 



PROPOSED RULES 



claims, for Medicare supplement insur- 
ance, expressed on an actual and a cur- 
rent benefit level basis covering the 
period of time from the earliest date 
experience is recorded to the most recent 
date experience is recorded. 

(19) The number of policy years contained 
within each hi s torical calendar year of 
data provided. An estimation of the 
amount of policy year exposure contribut- 
ed by all policyholders within each calen- 
dar year of data provided. 

(20) A statement declaring whether this is an 
open block of business or a closed block 
of business. 

(21) An estimation of the annual earned pre- 
mium on new issues for the period of 
time from the date that the most recent 
experience is last recorded to a date not 
exceeding the fifth year following the 
implementation date. 

(22) The number of months that the rate will 
be guaranteed to an individual policy- 
holder. 

(23) The rate revision implementation method, 
such as the next premium due date fol- 
lowing a given date, the next policy 
anniversary date, or otherwise; if other- 
wise, an explanation must be included. 

(24) A statement declaring the month and year 
of the earliest anticipated date of the next 
rate revision. 

(25) An explanation and actuarial justification 
of the apportionment of the aggregate 
rate revision within each policy form or 
between policy forms that have been 
grouped; and a demonstration that the 
apportionment of the aggregate rate 
revision yields the same premium income 
as if the rate revision had been applied 
uniformly. 

(26) An explanation and actuarial justification, 
if applicable, for changing any factor that 
affects the premium. 

(27) An explanation of the effect that the rate 
revision will have on the incurred loss 
ratio on those policies in force for three 
years or more as exhibited in the Medi- 
care Supplement Experience Exhibit of 
the Annual Statement. 

(28) The name, address, and telephone num- 
ber of an insurance company representa- 
tive who will be available to answer 
questions relating to the rate revision. 



Statutory Authority G.S. 58-2-40(1); 58-51-95; 
58-63-15(7)b. 

TITLE 12 - DEPARTMENT OF JUSTICE 

Notice is hereby given in accordance with G.S. 
150B-21.2 that the N.C. Department of Jus- 
tice/State Bureau of Information intends to adopt 
rule cited as 12 NCAC 4E .0204, with changes 
from the proposed text noticed in the Register, 
Volume 7, Issue 11 , page 1097. 

1 he proposed effective date of this action is 
January 4, 1993. 

MXeason for Proposed Action: The purpose of this 
rule is to permit SBI task force supervisors to have 
temporary management control over authorized 
personnel assigned to the task force from other 
agencies for purposes ofDCI access and certifica- 
tion. 

(comment Procedures: Comments may be submit- 
ted in writing, from October 15, 1992 to November 
14, 1992. Written comments should be submitted 
to E.K. Best, Division of Criminal Information, 
407 North Blount Street, Raleigh, N.C. 27601. 

CHAPTER 4 DIVISION OF CRIMINAL 
INFORMATION 

SUBCHAPTER 4E - ORGANIZATIONAL 
RULES AND FUNCTIONS 

SECTION .0200 - REQUIREMENTS FOR 
ACCESS 

.0204 SBI TASK FORCE 

MANAGEMENT CONTROL 

(a) When the SBI Director grants approval for 
the Bureau to participate in and supervise a joint 
criminal justice agency task force, those authorized 
staff assigned to the task force shall be temporarily 
considered under SBI management control for 
NCIC/DCI access and certification purposes 
provided the SBI supervisor responsible for the 
task force insures that: 

(1) Each person assigned to the task force 
shall be under the direct and immediate 
management control of any agency 
qualifying for full access under the 
provisions of Subchapter 4E Rule 



7:14 NORTH CAROLINA REGISTER October 15, 1992 



1413 



PROPOSED RULES 



(21 



.0201(a) of this Chapter; 
Each person shall he properly identified 
in PCI certification records as to the 
SBI district responsible for him, and the 
local agency having management con- 
trol over him pursuant to Subparagraph 
(a)(1) of this Rule; 

The res ponsible SBI supervisor shall 
treat all task force staff as SBI employ- 
ees in al] matters pertaining to these 
Rules; and 

The responsible SBI supervisor shall 
immediately notify' PCI m writing of 
the termination of any task force mem- 



L2J 



ii] 



ber upon such member's departure from 

the task force. 
(b) Any in-service certification obtained while a 
member of a task force shall be terminated upon 
notification of such member's departure. 

Statutory Authority G.S. 114-10; 114-10.1. 



x x x x x x 



x x x x 



x x % ^: 



l\ otice is hereby given in accordance with G.S. 
150B-21.2 that the North Carolina Alarm Systems 
Licensing Board intends to amend rule cited as 12 
NCAC 11 .0203. 

1 he proposed effective date of this action is 
January 4. 1993. 

1 he public hearing will be conducted at 11:00 
a.m. on November 2, 1992 at the State Bureau of 
Investigations , Conference Room, 3320 Old Gar- 
ner Road. Raleigh, NC. 

Keason for Proposed Action: Amends the licens- 
ing fee structure to conform to changes set forth in 
Senate Bill 340 which was ratified and became 
effective on July 15. 1992 and which nuide amend- 
ments to the Alarm Systems Licensing Act. 

{^onunent Procedures: Interested persons max 
present their views either orally or in writing at 
the hearing. In addition, the record of hearing 
will be open for receipt of written comments until 
November 14, 1992. Written comments must be 
delivered or mailed to: James F. Kirk, Alarm 
Systems Licensing Board. 3320 Old Garner Road, 
P.O. Box 29500, Raleigh, NC 27626-0500. 



Editor's Note: This Rule was filed as a tempo- 
rary rule effective October 6, 1992 for a period of 
180 days or until the permanent rule becomes 
effective, whichever is sooner. 

CHAPTER 11 - N. C. ALARM SYSTEMS 
LICENSLNG BOARD 

SECTION .0200 - PROVISIONS FOR 
LICENSEES 

.0203 FEES FOR LICENSES 

(a) Application license fees are as follows: 
(1) S e v e nty fiv e — dollars — ($75.00) One 
hundred fifty dollars ($150.00) 
non-refundable initial application fee; 
dollars ($25.00) 



&- 



■ nty fi' 



non r e fundabl e branch offic e application 

m {2} On e hundr e d fifty dollar s ($150.00) 
annual Three hundred fifty dollars 
(S350.00) biannual fee for a new or 
renewal license; 

(4) (3) Fifty dollar ($50.00) One hundred 
fifty dollars ($150.00) branch office 
license fee; 

(§) £4) One hundred dollars ($100.00) late 

renewal fee to be paid in addition to the 

renewal fee if the license has not been 

renewed on or before the expiration 

date. 

(b) Fees shall be paid in the form of a check or 

money order made payable to the Alarm Systems 

Licensing Board. 

Statutory Authority G.S. 74D-7. 

TITLE 15A - DEPARTMENT OF 

ENVIRONMENT, HEALTH. AND 

NATURAL RESOURCES 

IS otice is hereby given in accordance with G.S. 
150B-21.2 that the NC. Wildlife Resources Com- 
mission intends to amend rule cited as 15A NCAC 
10B .0115. 

1 he proposed effective date of this action is 
January 1, 1993. 

1 he public hearing will be conducted at 7:00 
p.m. on November 5, 1992 at the Macon County 
Courthouse. 5 West Main Street. Franklin, NC 



1414 



7:14 NORTH CAROLINA REGISTER October 15, 1992 



PROPOSED RULES 



28734. 

MXeason for Proposed Action: To restrict the 
shining of artificial lights in Macon County 

Comment Procedures: Interested persons may 
present their views either orally or in writing at 
the hearing. In addition, the record of hearing 
will he open for receipt of written comments from 
October 15, 1992 to November 14, 1992. Such 
written comments must be delivered or mailed to 
the N. C. Wildlife Resources Commission, 512 N. 
Salisbury Street, Raleigh, NC 27604-1188. 

CHAPTER 10 WILDLIFE RESOURCES 

AND WATER SAFETY 

SUBCHAPTER 10B - HUNTING AND 

TRAPPING 

SECTION .0100 - GENERAL 
REGULATIONS 

.0115 SHINING LIGHTS IN DEER 
AREAS 

(a) It having been found upon sufficient evi- 
dence that certain areas frequented by deer are 
subject to substantial unlawful night deer hunting, 
or that residents in such areas have been greatly 
inconvenienced by persons shining lights on deer, 
or both, the shining of lights on deer in such areas 
is limited by Paragraphs (b) and (c) of this Rule, 
subject to the exceptions contained in Paragraph 
(d) of this Rule. 

(b) No person shall, between the hours of 1 1 :00 
p.m. and one-half hour before sunrise, intentional- 
ly shine a light upon a deer or intentionally sweep 
a light in search of deer in the indicated portions 
of the following counties: 

(1) Beaufort — entire county; 

(2) Bladen — entire county; 

(3) Brunswick — entire county; 

(4) Camden -- entire county; 

(5) Chowan -- entire county; 

(6) Currituck — entire county; 

(7) Duplin -- entire county; 

(8) Franklin -- entire county; 

(9) Gates -- entire county; 

(10) Greene -- entire county; 

(11) Hertford -- entire county; 

(12) Hoke — entire county; 

(13) Hyde — entire county, except that part 
of the county described in Paragraph (c) 
of this Rule; 



(14) Jones — entire county; 

(15) Lenoir — entire county; 

(16) Martin — entire county; 

(17) Nash — entire county; 

(18) Pamlico -- entire county; 

(19) Pasquotank — entire county; 

(20) Pender — entire county; 

(21) Perquimans — entire county; 

(22) Pitt -- entire county; 

(23) Richmond — entire county; 

(24) Sampson -- entire county; 

(25) Tyrrell -- entire county; 

(26) Vance -- entire county; 

(27) Wake — entire county; 

(28) Warren — entire county; 

(29) Washington -- entire county; 

(30) Wayne — entire county. 

(c) No person shall, between the hours of 
one-half hour after sunset and one-half hour before 
sunrise, intentionally shine a light upon a deer or 
intentionally sweep a light in search of deer in the 
indicated portions of the following counties: 

(1) Alamance -- entire county; 

(2) Alexander — entire county; 

(3) Alleghany — entire county; 

(4) Anson -- entire county; 

(5) Ashe — entire county; 

(6) Avery — that portion south and east of 
Highway 221; 

(7) Burke — entire county; 

(8) Cabarrus -- entire county; 

(9) Caldwell -- entire county; 

(10) Caswell — entire county; 

(11) Catawba -- entire county; 

(12) Chatham — entire county; 

(13) Clay — entire county; 

(14) Cleveland -- entire county; 

(15) Cumberland — entire county; 

(16) Davidson -- entire county; 

(17) Davie — entire county; 

(18) Durham -- entire county; 

(19) Edgecombe — entire county; 

(20) Forsyth County — entire county; 

(21) Gaston — entire county; 

(22) Granville -- entire county; 

(23) Guilford — entire county; 

(24) Halifax -- entire county; 

(25) Harnett — entire county; 

(26) Henderson — entire county; 

(27) Hyde -- that part bounded on the north 
by a line running parallel with and 1000 
yards in a northward direction from that 
part of SR 1304 that leads from 
Hodges' Fork to Rose Bay, on the east 
by the Mattamuskeet National Wildlife 



7:14 NORTH CAROLINA REGISTER October 15, 1992 



1415 



PROPOSED RULES 



Refuge boundary, on the southeast by 
US 264. and on the west and southwest 
by a line running parallel with and 1000 
yards in a west or southwest direction 
from the centerline of SR 1304; 

(28) Iredell — entire county; 

(29) Johnston -- entire county; 

(30) Lee — entire county; 

(31) Lincoln -- entire county; 

(32) Macon ~ entire county; 
03) (33) McDowell — entire county; 
(77) (34) Mecklenburg — entire county; 

(74) (35) Mitchell — entire county; 

(75) (36 ( Montgomery -- entire county; 

(76) (37) Northampton — entire county; 

(77) (38) Orange County — entire county; 
(7&) (39) Person -- entire county; 

09) (40]Polk - entire county; 
(40) (4JJ Randolph — entire county; 
(44) (42) Robeson County -- entire county; 
07) (43) Rockingham -- entire county; 

(43) (44) Rowan -- entire county; 

(44) (45) Rutherford — entire county; 

(45) (46) Scotland — that part lying west of US 

401 north of Laurinburg and north of 
US 74 west of Laurinburg; 

(46) (47) Stanly -- entire county; 

(47) (48) Stokes — entire county; 
(4&) (49) Surry — entire county; 

(49) (50) Transylvania — entire county; 
00) (51) Union — entire county; 
(54) (52) Watauga — entire county; 
(57) (53) Wilkes -- entire county; 
(57) (54) Yadkin — entire county; 
(54) (55) Yancey -- entire county, 
(d) Paragraphs (b) and (c) of this Rule shall not 
be construed to prevent: 



the lawful hunting of raccoon or opos- 
sum during open season with artificial 
lights designed or commonly used in 
taking raccoon and opossum at night; 
the necessary shining of lights by land- 
holders on their own lands; 
the shining of lights necessary to nor- 
mal travel by motor vehicles on roads 
or highways; or 

the use of lights by campers and others 
who are legitimately in such areas for 
other reasons and who are not attempt- 
ing to attract or to immobilize deer by 
the use of lights. 



Statutory Authority G.S. 113-134; 113-291. 1; S.L. 
1981, Ch. 410; S.L. 1981 (Second Session 1982). 
Ch. 1180. 



(1) 

(2) 
(3) 

(4. 



TITLE 21 - OCCUPATIONAL 
LICENSING BOARDS 

Notice is hereby given in accordance with G.S. 
150B-21.2 that the North Carolina State Board of 
Chiropractic Examiners intends to adopt rule cited 
as 21 NCAC 10 .0206, and amend rule(s) cited as 
21 NCAC 10 .0205. 

1 he proposed effective date of this action is 
January 4. 1993. 

1 he public hearing will be conducted at 7:30 
a.m. on November 14, 1992 at the Pinehurst 
Hotel, Pinehurst. N. C. 

Reason for Proposed Action: 

21 NCAC 10 .0205 is being amended to increase 
professional continuing education requirements. 

21 NCAC 10 .0206 is being adopted to satisfy 
new statutory certification requirements. 

(comment Procedures: Written comments may be 
sent to the Board for 30 days after publication. 
The Board's mailing address is P.O. Box 312, 
Concord, NC 28025. Oral comments will be 
received at the public hearing. 

CHAPTER 10 BOARD OF 
CHIROPRACTIC EXAMINERS 

SECTION .0200 - PRACTICE OF 
CHIROPRACTIC 

.0205 RENEWAL OF LICENSE 

(a) General. The renewal, cancellation and 
restoration of a license are governed by G.S. 
90-155, which statute is herewith incorporated by 
reference in accordance with G.S. 150B-14(c). 

(b) Renewal Application Form. Annual applica- 
tion for renewal of license shall be made on a form 
prescribed and furnished by the Board. Any 
changes in a licentiate's name, address, profession- 
al specialty or employment shall be noted on the 
Renewal Application Form. 

(c) Continuing Education. The licentiate shall 
state on the Renewal Application Form the name, 
date, sponsor and duration of all educational 
sessions attended by him during the preceding 
year. 



1416 



7:14 NORTH CAROLINA REGISTER October 15, 1992 



PROPOSED RULES 



(1) As used in G.S. 90-155, one "day" of 
continuing education shall be defined as 
si* J_2 hours. 

(2) Evidence of attendance shall be in the 
form of written certification from the 
sponsoring body. 

(3) Any licentiate seeking a hardship waiv- 
er of the continuing education require- 
ment shall make application on a sepa- 
rate form provided by the secretary 
upon request. 

(d) Renewal Fee. A renewal fee in the maxi- 
mum amount allowed by statute shall be paid by 
each licentiate applying for renewal. 

(e) Restoration of Cancelled License: Evidence 
of Proficiency. In order to provide evidence of 
proper proficiency, any former licentiate whose 
license has been cancelled due to non-compliance 
with G.S. 90-155 must be re-examined and must 
pay the application fee prescribed in 21 NCAC 10 
Rule .0202(d) to cover the cost of re-examination. 
Payment of the application fee does not constitute 
payment of the statutory reinstatement fee. 

Statutory Authority G.S. 90-155; 150B-14. 

.0206 CERTIFICATION OF RADIOLOGIC 
TECHNOLOGISTS 

(a) In order to be certified competent pursuant 
to G.S. 90-143.2, a person employed in a chiro- 
practic office whose duties include the production 
of x-rays or other diagnostic images must: 



second year of certification. 



Statutory Authority G.S. 90-143.2. 



ill 



Ql 



£b] An; 
American 



Complete a Board-approved course in 
radiologic technology at least 50 hours 
in length and taught by an instructor 
who is a member of the radiology 
faculty at a college accredited by the 
Council on Chiropractic Education: and 
Pass a proficiency examination adminis- 
tered by or under the authority of the 
Board of Examiners. 
; person registered as "active" with the 



Chiropractic Registry of Radiologic 
Technologists shall be deemed to have satisfied the 
educational requirements of Paragraph (a) of this 
Rule. 



(c) A certificate of competency issued pursuant 
to G.S. 90-143.2 shall expire at the end of the 
calendar year in which it was issued but may be 
renewed upon a showing that the certificate holder 
completed six hours of Board-approved continuing 
education in radiologic technology during the year. 
Any person whose initial certificate expires less 
than 12 months after issuance shall not be required 
to obtain continuing education until entering the 









fSotice is hereby given in accordance with G.S. 
150B-21. 2 that the Board of Medical Examiners of 
the State of North Carolina intends to amend rule 
cited as 21 NCAC 32B .0309. 

1 he proposed effective date of this action is 
January 1 . 1993. 

1 he public hearing will be conducted at 9:00 
a.m. on November 2, 1992 at the NC Board of 
Medical Examiners, 1203 Front Street, Raleigh, 
NC 27609. 

Keason for Proposed Action: To allow the 
Assistant Executive Secretary to conduct personal 
interviews for licensing. 

(comment Procedures: Persons interested may 
present written or oral statements relevant to the 
actions proposed at a hearing to be held as indi- 
cated above. Written statements not presented at 
the hearing should be directed before October 16, 
1992, to the following address: Administrative 
Procedures, NC Board of Medical Examiners, 
P.O. Box 26808, Raleigh, NC 27611-6808. 

CHAPTER 32 - BOARD 
OF MEDICAL EXAMINERS 

SUBCHAPTER 32B - LICENSE TO 
PRACTICE MEDICINE 

SECTION .0300 - LICENSE BY 
ENDORSEMENT 

.0309 PERSONAL INTERVIEW 

To be eligible for license by endorsement of 
credentials, applicants must appear before the 
Executive Secretary, Assistant Executive Secre- 
tary , a Board member, an agent of the Board, or 
the full Board for a personal interview upon 
completion of all credentials. 

Statutory Authority G.S. 90-13. 



7:14 NORTH CAROLINA REGISTER October 15, 1992 



1417 



PROPOSED RULES 



Notice is hereby given in accordance with G.S. 
150B-21.2 that the North Carolina Board of 
Pharmacy intends to adopt rule cited as 21 NCAC 
46 .2504. with changes from the proposed text 
noticed in the Register, Volume 6, Issue 19, page 
1480. 

L he proposed effective date of this action is 
January 4, 1993. 

Ixeason for Proposed Action: This adoption is 
necessary to ensure patients are adequately in- 
formed about their prescription medications. 

Ksomment Procedures: Any person may file 
written submission of comments or argument at 
any time up to and including November 16, 1992. 
Comments should be nuiiled to the Board's ad- 
dress. P.O. Bo.x 459, Carrboro, NC 27510. 

CHAPTER 46 BOARD OF PHARMACY 

SECTION .2500 - MISCELLANEOUS 
PROVISIONS 

.2504 PATIENT COUNSELING 

(a) "Patient Counseling" shall mean the effective 
communication of information, as defined in this 
Rule, to the patient or caregiver in order to im- 
prove therapeutic outcomes by maximizing proper 
use of prescription medications and devices. This 
Rule shall apply to pharmacists and to registrants 
under G.S. 90-85.21 . Specific areas of patient 
counseling shall include, but are not limited to: 
( 1 ) name, description, and purpose of the 
medication; 

administration, and 



121 
£3} 
141 



route, dosage. 



continuity of therapy; 
special directions for use by the patient; 
and 

side effects or interactions that may be 
encountered which may interfere with 
the proper use of the medication or 
device as was intended by the prescrib- 
er, and the action required if they 
occur, 
(b) An offer to counsel shall be made on new or 
transfer prescriptions by the pharmacist or regis- 
trant at the time the prescription \s dispensed to the 
patient or caregiver. The offer shall be made 
orally and in person, or through access to a tele- 
phone service at no charge to the patient. Profes- 



sional judgment shall be exercised in determining 
whether or not to offer counseling for prescription 
refills. No offer to counsel shall state or imply 
that receiving counseling will involve extra delay, 
additional cost, or other inconvenience. 

(c) In order to counsel patients effectively, a 
reasonable effort shall be made to obtain, record. 
and maintain, if significant, patient information, 
including, but not limited to: 

(1) name, address, telephone number; 

(2) date of birth (age), gender; 

(3) medical history: 

(A) disease state(s), 

(B) allergies/drug reactions, 

(C) current list of non-prescription and 
prescription medications and devices. 

(d) Once patient information is obtained, this 
information should be reviewed before each pre- 
scription is filled or delivered, typically at the 
point-of-sale or point of distribution to screen for 
potential drug therapy problems due to: 

( 1 ) therapeutic duplication; 

(2) drug-disease contraindication; 

(3) drug-drug interactions, including seri- 
ous interactions with nonprescription or 
over-the-counter drugs; 

(4) incorrect drug dosage or duration of 
drug treatment; 

(5) drug-allergy interactions; and 

(6) clinical abuse/misuse. 

(e) Unless refused by the patient or caregiver, 
patient counseling shall be provided as follows: 

(1) counseling shall be "face to face" by 
the pharmacist or registrant when possi- 
ble or appropriate. If this is not possi- 
ble, a reasonable effort shall be made to 
counsel the patient or caregiver; 

(2) alternative forms of patient information 
may be used to supplement patient 
counseling; 

(3) patient counseling, as described in this 
Rule, shall also be required for outpa- 
tient and discharge patients of hospitals, 
health maintenance organizations, 
health departments, and other institu- 
tions; 

(4) patient counseling, as described in this 
Rule, shall not be required for inpa- 
tients of hospitals or other institutions 
where a nurse or other licensed health 
care professional administers the medi- 
cation^); and 

(5) appropriate patient-oriented reference 
materials (i.e. USP-DI. Facts and Com- 
parisons, Patient Drug Facts, etc.) shall 



1418 



7:14 NORTH CAROLINA REGISTER October 15, 1992 



PROPOSED RULES 



be maintained for use by the patient 
upon request. 

(f) Pharmacies that distribute prescription medi- 
cation by mail, and where the practitioner-pharma- 
cist-patient relationship does not exist, shall pro- 
vide counseling services for recipients of such 
medication, which shall include contracting with 
local pharmacists to provide patient counseling. 
The local pharmacists shall be sufficient in number 
and demographic distribution to provide available 
and adequate patient counseling. The contract 
between the pharmacy and the local pharmacist 
shall contain provisions for patient counseling 
consistent with this Rule, and shall provide for the 
exchange of patient medication records between 
the pharmacy and the local pharmacist. 

(g) Records resulting from compliance with this 
Rule shall be maintained for three years in accor- 
dance with Section .2300 of this Chapter. 

Authority G.S. 90-85.6; 90-85.21; 90-85.32; 42 
U.S.C. 1396r-8(g). 

TITLE 25 - OFFICE OF STATE 
PERSONNEL 

fSotice is hereby given in accordance with G.S. 
150B-21.2 that the Office of State Personnel 
intends to adopt rules cited as 25 NCAC IB .0107; 
IN .0005 - .0007; amend rule cited as 25 NCAC 
IN .0004; and repeal rule cited as 25 NCAC IN 
.0001. 



of Section 126-4(10). 

25 NCAC IN .0004 - This Rule is proposed to he 
amended to offer guidance and clarification to 
state agencies and universities in implementing a 
new Article that has been added to Chapter 143 of 
the General Statutes (Article 63-Sections 
143-580-143-584) and the amendment of Section 
126-4(10). 

25 NCAC IN .0005 - .0007 - These rules are 
proposed to be adopted to offer guidance and 
clarification to state agencies and universities in 
implementing a new Article that has been added to 
Chapter 143 of the General Statutes (Article 
63-Sections 143-580-143-584) and the amendment 
of Section 126-4(10). 

Comment Procedures; Interested persons may 
present statements either orally or in writing at the 
Public Hearing or in writing prior to the hearing 
by mail addressed to; Barbara A. Coward, Office 
of State Personnel. 1 16 W. Jones Street, Raleigh, 
NC. 27603. 

CHAPTER 1 - OFFICE OF STATE 
PERSONNEL 

SUBCHAPTER IB - STATE PERSONNEL 
COMMISSION 

SECTION .0100 - GENERAL PROVISIONS 



1 he proposed effective date of this action is 
February 1. 1993. 

1 he public hearing will be conducted at 9:00 

a.m. on December 1 , 1992 at the State Personnel 

Development Center, 101 W. Peace Street, Ra- 
leigh, NC. 

Keason for Proposed Action; 
25 NCAC IB .0107 - Tfi is adoption is necessary 
for the Office of State Personnel's implementation 
of the statutory requirements of G.S. 126-1 A which 
defines the term "Career State Employee. " 

25 NCAC IN .0001 - Tliis Rule is proposed to be 
repealed in order to adopt and amend rules to 
conform to a new article that has been added to 
Chapter 143 of the General Statutes (Article 
63-Sections 143-580-143-584) and the amendment 



.0107 CAREER STATE EMPLOYEE 
CLASSIFICATION 
DESIGNATION 

The term "career state employee" and the classes 
and positions covered by this term are defined in 
N.C.G.S. 126-1A. It is the responsibility of the 
Office of State Personnel, along with the agencies 
and universities to assign classes and positions to 
one of these definitions. Where the Office of State 
Personnel and the agencies/universities cannot 
agree on a designation, the State Personnel Com- 
mission shall have final decision making authority 
in assigning the position and/or class to the defini- 
tion. Following the designation of all positions 
and classes, the Office of State Personnel shall 
submit a master list of such designations to the 
State Personnel Commission for approval by June 
of 1993. 

Statutory Authority G.S. 126-1 A; 126-4. 



7:14 NORTH CAROLINA REGISTER October 15, 1992 



1419 



PROPOSED RULES 



SUBCHAPTER IN - STATE EMPLOYEES 

WORKPLACE REQUIREMENTS 
PROGRAM FOR SAFETY AND HEALTH 

.0001 PURPOSE 

The purpose of the State Employee s Workplace 
Requirements for Safety and Health Program i s to 
accomplish the following: 



m- 



Through — training — and — education. — the 
program will work to provide managers, 
supervisors — and — employees — »f- — North 
Carolina State Gov e rnment with a firm 
under s tanding of the state's concern for: 
protecting employees from job related 
injurie s or health impairment; preventing 
accident s and fire s ; planning for cmcr 
gencies and emergency medical proce 
durc s ; — monitoring — indu s trial — hygiene; 



a ss unn _ 
sanitation. 



g — adequate — hi 



ou s okeening 



and 



e program will work to utilize avail 
able resource s within state government 
and elsewhere — to inform and educate 
per s onnel — tn — aH — area s — ef — preventive 
health, safety, personal s ecurity, personal 
care and other individual respon s ibilitie s . 

f?-) The program — w4H — develop appropriate 

r e quirements to meet these concerns and 
will provide guideline s for their imple 
mentation. 



Statutory Authority G.S. 95-148; 1 26-4(5 ).( 10); 
Executive Order No. 6. 

.0004 PROGRAM ADMINISTRATION 

(a) The State Personnel Director is responsible 
through designated staff for developing, imple- 
menting, and monitoring agency participation in 
programs — fer- — improving workplace — safety and 
health, and university compliance with the State 
Employee Workplace Requirements Program for 
Safety and Health. The Director will establish 
lines of communication between state agencies and 
universities to refine and expand the workplace 
requirement s — for s afety and health. program. 
This is to be accomplished by providing consulta- 
tive and s upport technical services through the 
Employee Safety and Health Division that include: 

( 1 ) technical assistance in the design and 
development o f agency program written 
safety and health programs and opera- 
tive safety committees as well as f=e- 
quest for a s sistance with assessment of 
specialized workplace hazards; 

(2) a s y s tematic — evaluation — and periodic 



inspection of state operations to ensure 
the identification and control of hazard- 
ous workplace environments and unsafe 
work practices which could endanger 
state employees; 

(3) industrial hygiene services for the 
smaller agencies; 

(4) development of Statewide maintenance 
of a State Employe* Safety and Health 
Handbooks Handbook describing the 
responsibilities of participation — by 
employees and outlining the basic rules 
for working safely in state government; 

(5) investigation of work-related fatalities 
and major lost workday injuries and 
illnesses to ensure that agencies and 
universities have program elements in 
place to control specific hazards; 

(6) coordination of training programs for 
designated safety and health officers 
through coordinated resources of the 
N.C. Department of Labor, the Depart- 
ment of Human Resources, the Depart- 
ment of Environment, Health, and 
Natural Resources, Department of 
Insurance, and the N.C. Industrial 
Commission; 

(7) maintenance of a statewide data infor- 
mation service for analyzing 
work-related injuries and illnesses and 
their related cost; 

(8) a systematic evaluation of state agencies 
and universities to ensure compliance 
with written program and safety com- 
mittee requirements. 

To assist the director, — he — s hall — appoint State 
Personnel Director, a State Steering Committee, te 
include composed of program staff ef from state 
agencies and universities, -who shall be appointed 
to recommend program changes, goals, and solu- 
tions to problems. Any additions or significant 
changes to the administrative or workplace require- 
ments procedures will occur only after consultation 
with the State Steering Committee. 

(b) Annually, the State Personnel Director shall 
prepare a report for the Governor, the State Per- 
sonnel Commission, and all state agencies and 
universities which will assess the compliance with 
program achievements, recommend future changes, 
and include an analy s i s of injury and compensation 
statistics, requirements, committee effectiveness, 
recommended changes to enhance program, and a 
statistical analysis of work-related injuries and 
illnesses and compensation cost. 

(c) The State Personnel Commission shall 



1420 



7:14 NORTH CAROLINA REGISTER October 15, 1992 



PROPOSED RULES 



comply with the provisions set forth in G.S. 
143-583. 

{e) — Every s tate agency s hall have a Workplace 
Requirements — Program — fer- — Safety — and — Health 
consistent with the State Personnel Commission's 
model program and its procedural requirements. 
Each agency head shall designate a safety and 
health officer to be responsible for implementing 
a workplace safety and health program within the 
agency — and — for developing s p e cial — safety — and 
health procedures or standards n e eded to meet 
unique or special — situations within the agency. 
The agency program s hall be in accord with the 
specific program s tandards and reporting require 
ment s established by the State Personnel Director. 

(d) Agencies with pre exi s ting safety and health 
programs will review their program s and make 
necessary — modifications — to — conform — with — and 
complement — the — State — Employees' — Workplace 
Requirement s Program. 

{e) — As required by G.S. 95 1 48 , agency heads 
shall, after consultation with the Commissioner of 
Labor, make an annual report to the Commissioner 
on occupational accident s and injurie s . 

ff-) — Each agency shall form an internal steering 
committee to guide and as s i s t the agency head and 
the designated safety and health officer in develop 
tftgn — implementing — and — evaluating — this — agency 
program. 

fg} — All supervi s or s and employees have safety 
and health responsibility. — A supervi s or i s re s pon 
sible for providing s afe working condition s for 
eeeh — subordinate, — knowing — s afety — and — health 
guidelines, reporting and investigating accidents. 



and advi s ing management of 



un s afe work 



sfty- 
environment or condition. 

tb) Each — state — employee — is — responsible — fer 

conducting his or her own work in a safe manner 
to protect s elf and the public; for making recom 
mendation s to improve s afety; and for immediately 
notifying the supervisor of any accident or injury. 

Statutory Authority G.S. 95-148; 126-4(5)(10); 
143-580 through 143-584; Executive Order No. 6 
(1985). 

.0005 STATE AGENCIES AND 
UNIVERSITIES' 
RESPONSIBILITIES 

(a) Each state agency and university shall have 
a written State Employee Workplace Requirements 
Program for Safety and Health consistent with the 
State Personnel Commission's model program and 
its procedural requirements. Written components 
of the program shall describe at a minimum the 



program requirements set forth in G.S. 143-582. 

(b) Each state agency and university shall create 
safety and health committees. There shall be at 
least one safety and health committee in agencies 
and universities with less than 300 employees. 
Agencies and universities with 300 or more em- 
ployees shall have a multilayered safety and health 
committee organizational structure designed to 
ensure employee involvement: a toj) level commit- 
tee that is responsible for the agency wide policy 
issues and other committees that meet the require- 
ments outlined in Rule .0006 of this Subchapter. 

(c) The Safety and Health Committee shall have 
non-supervisory employee and management repre- 
sentatives. The number of management represen- 
tatives shall not exceed the number of employee 
representatives. The terms of each representative 
shall be staggered to maintain the continuity of the 
Committee. The non-supervisory employee repre- 
sentative will be referred to as the Employee 
Safety and Health Representative. The Committee 
shall be composed of: 

(1) One Employee Safety and Health Rep- 
resentative where the average number 
of employees of the agency or universi- 
ty_ during the year was more than 10, 
but less than 50. 

(2) Two Employee Safety and Health Rep- 
resentatives where the average number 
of employees during the year was more 
than 50, but less than 100. 

(3) An additional Employee Safety and 
Health Representative for each addition- 
al 100 employees ug to a maximum of 
six Employee Safety and Health Repre- 
sentatives. 

(d) A state agency or university with significant 
field forces must ensure field operations are 
represented by a member(s) of that group. 

(e) The agency or university Safety and Health 
Officer or designee serves as ex-officio member 
with voting rights on the Committee(s). 

(f) The agency or university will establish a 
procedure by which Employee Safety and Health 
Representatives can be selected or appointed. 

(g) The Chairman of the Committee may be 
appointed by the agency head/university chancellor 
or elected by the members. Secretarial services 
are to be provided to the Chairman to carry out his 
or her duties. 



(h) Each state agency and university shall notify 
the Office of State Personnel, Division of Employ- 
ee Safety and Health of any fatality or single 
accident resulting in three or more persons injured 
within 24 hours of the accident. A summary 



7:14 NORTH CAROLINA REGISTER October 15, 1992 



1421 



PROPOSED RULES 



investigation report and Death Claim Notice Form 
is to be filed within two weeks of knowledge of 
the death. 

(i) Each state agency and university will provide 
a quarterly summary of aeeident/injury/illness data 
to the Office of State Personnel, Division of 
Employee Safety and Health . The data shall 
include, but not be limited to, employment infor- 
mation, occupational injuries/illnesses data, inci- 
dence rates, workers' compensation claims, expen- 
ditures and subrogation collected. Copies of the 
required forms may be found j_n Section Four of 
the North Carolina State Personnel Policy Manual. 

(j) Each state agency and university shall use the 
uniform safety and health symbols adopted by the 
State Personnel Commission in communication and 
educational efforts involving components of the 
State Employee Workplace Requirements Program 
for Safety and Health. These symbols may be 
found in Section Four of the North Carolina State 
Personnel Policy Manual. 

Statutory Authority G.S. 95-148; 126-4(5), (10); 
143-580 through 143-584; Executive Order No. 6 

(1985). 

.0006 COMMITTEE(S)' 

RESPONSIBILITIES 

The Safety and Health Committee(s) shall per- 
form the following functions as well as any other 
functions determined by the State Personnel Com- 
mission to be necessary for the effective imple- 
mentation of the State Employees Workplace 
Requirements Program for Safety and Health: 

(1) Review all safety and health policies and 
procedures established by the agency or 
university. 

(2) Review incidents involving work-related 
fatalities. injuries, illnesses or 
near-misses. 

(3) Review employee complaints regarding 
safety and health hazards. 

(4) Analyze the agency or university's work 
injury and illness statistical records. 

(5) Conduct inspections of worksites at least 
annually and in response to complaints 
regarding safety or health hazards. 

(6) Conduct interviews with employees in 
conjunction with inspections of the 
workplace. 

(7) Review agency or university's training 
records to ensure compliance with regula- 
tory training requirements. 

(8) Conduct meetings at least once every 
three months. Maintain written minutes 



of such meeting and send copy to each 
committee member. Copy of minutes 
shall be posted in the appropriate 
workplace. 

(9) Designate Employee Safety and Health 
Representative(s) to accompany represen- 
tatives from regulatory agencies (i.e. NC 
Occupational Safety and Health Division, 
NC Department of Insurance, NC Divi- 
sion of Environmental Management) 
during safety and health inspections of 
the workplace. 

(10) Make written recommendations on behalf 
of the Committee to the agency head or 
university chancellor. 

Statutory Authority G.S. 95-148; 126-4(5), (10); 
143-580 through 143-584; Executive Order No. 6 
(1985). 

.0007 STATE EMPLOYEES' 
RESPONSIBILITIES 

(a) Each supervisor is responsible for providing 
safe working conditions for each subordinate, 
knowing safety and health guidelines, reporting 
and investigating accidents and advising manage- 
ment of any unsafe work environment or condi- 
tion. 

(b) Each employee js responsible for conducting 
his or her own work in a safe manner to protect 
their self, fellow employees and the public; for 
making recommendations to improve safety and 
health in the workplace and for immediately 
notifying the supervisor of any accident involving 
injury, illness, or near-miss. 

Statutory Authority- G.S. 95-148; 126-4(5), (10); 
143-580 through 143-584; Executive Order No. 6 
(1985). 



1422 



7:14 NORTH CAROLINA REGISTER October 15, 1992 



RRC OBJECTIONS 



1 he Rules Review Commission (RRC) objected to the following rules in accordance with G. S. 143B- 
30.2(c). State agencies are required to respond to RRC as provided in G.S. 143B-30.2(d). 



ADMINISTRATION 

Motor Fleet Management Division 

1 NCAC 38 .0205 - Accident Reporting 
AGRICULTURE 

Gasoline and Oil Inspection Board 

2 NCAC 42 .0102 - Definitions 

Agency Revised Rule 
2 NCAC 42 .0801 - Purpose and Applicability 
Agency Revised Rule 

Structural Pest Control Division 

2 NCAC 34 .0406 - Spill Control 

Agency Responded 
2 NCAC 34 .0603 - Waivers 

Agency Responded 
2 NCAC 34 .0902 - Financial Responsibility 

Agency Responded 

ECONOMIC AND COMMUNITY DEVELOPMENT 
ABC Commission 

4 NCAC 2R .0702 - Disciplinary Action of Employee 

Rule Returned to Agency 
4 NCAC 2R .1205 - Closing of Store 

Agency Repealed Rule 
4 NCAC 2S .0503 - Pre-Orders 

Rule Returned to Agency 

ENVIRONMENT, HEALTH, AND NATURAL RESOURCES 

Coastal Management 

15A NCAC 7H .0306 - General Use Standards for Ocean Hazard Areas 
Rule Returned to Agency 

Departmental Rules 

15A NCAC I J .0204 - Loans from Emergency Revolving Loan Accounts 

15 A NCAC U .0302 - General Provisions 

15 A NCAC U .0701 - Public Necessity: Health: Safety and Welfare 



RRC Objection 09/17/92 



RRC Objection 08/20/92 

Obj. Removed 08/20/92 

RRC Objection 08/20/92 

Obj. Removed 08/20/92 



RRC Objection 
No Action 
RRC Objection 
No Action 
RRC Objection 
No Action 



07/16/92 
08/20/92 
07/16/92 
08/20/92 
07/16/92 
08/20/92 



RRC Objection 

RRC Objection 
Obj. Removed 
RRC Objection 



05/21/92 
06/18/92 
05/21/92 
06/18/92 
05/21/92 
06/18/92 



RRC Objection 



05/21/92 
06/18/92 



RRC Objection 06/18/92 
RRC Objection 06/18/92 
RRC Objection 06/18/92 



7:14 NORTH CAROLINA REGISTER October 15, 1992 



1423 



RRC OBJECTIONS 



Environmental Health 

15 A NCAC 18A .3101 - Definitions 
Agency Revised Rule 

Environmental Management 

15 A NCAC 2D .0538 - Control of Ethylene Oxide Emissions 

Agency Revised Rule 
15A NCAC 2D .1104- Toxic Air Pollutant Guidelines 

Agency Revised Rule 
15A NCAC 2G .0601 - The Aquatic Weed Control Act 

Agency Revised Rule 
15.4 NCAC 20 .0302 - Self Insurance 

Health: Epidemiology 

15A NCAC 19H .0402 - Documentary Evidence: Facts to be Established 

Agency Revised Rule 
15A NCAC 19H .0601 - Birth Certificates 

Agency Revised Rule 

Soil and Water Conservation 

15A NCAC 6E .0007 - Cost Share Agreement 
Agency Revised Rule 

Wildlife Resources and Water Safety 

15A NCAC WE .0004 - Use of Areas Regulated 
Agency Revised Rule 

HUMAN RESOURCES 

Aging 

10 NCAC 22R .0301 - Definitions 
Agency Revised Rule 
Agency Revised Rule 

Day Care Rules 



RRC Objection 06/18/92 
Obj. Removed 06/18/92 



RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 



08/20/92 
08/20/92 
08/20/92 
08/20/92 
08/20/92 
08/20/92 
06/18/92 



RRC Objection 08/20/92 

Obj. Removed 08/20/92 

RRC Objection 06/18/92 

Obj. Removed 06/18/92 



RRC Objection 06/18/92 
Obj. Removed 06/18/92 



RRC Objection 06/18/92 
Obj. Removed 08/20/92 



RRC Objection 07/16/92 
RRC Objection 07/16/92 
Obj. Removed 08/20/92 



10 NCAC 46D .0305 - Administration of Program 

Agency Revised Rule 
10 NCAC 46D .0306 - Records 

Agency Revised Rule 



RRC Objection 06/18/92 

Obj. Removed 06/18/92 

RRC Objection 06/18/92 

Obj. Removed 06/18/92 



Medical Assistance 



10 NCAC50A .0305 - Appeal Decision 
Agency Revised Rule 

Mental Health: General 

10 NCAC 14C . 1010 - Other Contracts 



RRC Objection 08/20/92 
Obj. Removed 08/20/92 



RRC Objection 08/20/92 



1424 



7:14 NORTH CAROLINA REGISTER October 15, 1992 



RRC OBJECTIONS 



Agency Revised Rule 
10 NCAC 14C . 1115 - Funding Group Homes for Mentally Retarded Adults 

10 NCAC 14M .0704 - Program Director 

Agency Revised Rule 

INSURANCE 

Departmental Rules 

11 NCAC 1 .0106 - Organization of the Department 

Agency Revised Rule 

Multiple Employer Welfare Arrangements 

11 NCAC 18 .0019 - Description of Forms 

Seniors' Health Insurance Information Program 

7/ NCAC 17 .0005 - SH11P Inquiries to Insurers and Agents 

LABOR 

Occupational Safety and Health Act 

13 NCAC 7C .0108 - Building Code 

13 NCAC 7C .0109 - Fire Prevention Code 

LICENSING BOARDS AND COMMISSIONS 

Dietetics/Nutrition 

21 NCAC 17 .0014 - Code of Ethics for Professional Practice/Conduct 
Agency Revised Rule 
Agency Revised Rule 

General Contractors 

21 NCAC 12 .0503 - Renewal of License 
Agency Revised Rule 

REVENUE 

Individual Income, Inheritance and Gift Tax Division 

/ 7 NCA C 3B . 0401 - Penalties 
17 NCAC 3B .0402 - Interest 

Individual Income Tax Division 

17 NCAC 6B .0107 - Extensions 

17 NCAC 6B .0115 - Additions to Federal Taxable Income 

17 NCAC 6B .0116 - Deductions from Federal Taxable Income 

1 7 NCA C 6B .0117 - Transitional Adjustments 

1 7 NCA C 6B . 3406 - Refunds 



Obj. Removed 08/20/92 

RRC Objection 08/20/92 

RRC Objection 05/21/92 

Obj. Removed 06/18/92 



RRC Objection 06/18/92 
Obj. Removed 06/18/92 



RRC Objection 06/18/92 



RRC Objection 06/18/92 



RR C Objection 09/1 7/92 
RRC Objection 09/17/92 



RRC Objection 05/21/92 
RRC Objection 05/21/92 
Obj. Removed 06/18/92 



RRC Objection 08/20/92 
Obj. Removed 08/20/92 



RRC Objection 08/20/92 
RRC Objection 08/20/92 



RRC Objection 
RRC Objection 
RRC Objection 
RRC Objection 
RRC Objection 



08/20/92 
08/20/92 
08/20/92 
08/20/92 
08/20/92 



7:14 NORTH CAROLINA REGISTER October 15, 1992 



1425 



RRC OBJECTIONS 



STATE PERSONNEL 
Office of State Personnel 

25 NCAC IE . 1301 - Purpose RRC Objection 07/16/92 

Agency Revised Rule Obj. Removed 08/20/92 

25 NCAC IE .1302 - Policy RRC Objection 07/16/92 

Agency Revised Rule Obj. Removed 08/20/92 

25 NCAC IE . 1303 - Administration RRC Objection 07/16/92 

Agency Revised Rule Obj. Removed 08/20/92 

25 NCAC IE . 1304 - Qualifying to Participate in Voluntary Shared Leave Prgm RRC Objection 07/16/92 

Agency Revised Rule Obj. Removed 08/20/92 

25 NCAC IE .1305 - Donor Guidelines RRC Objection 07/16/92 

Agency Revised Rule Obj. Removed 08/20/92 

25 NCAC IE . 1306 - Leave Accounting Procedures RRC Objection 07/16/92 

Agency Revised Rule Obj. Removed 08/20/92 

25 NCAC 1H .0603 - Special Recruiting Programs- RRC Objection 05/21/92 

Agency Repealed Rule Obj. Removed 06/18/92 

25 NCAC 11 .1702 - Employment of Relatives RRC Objection 07/16/92 

Agency Revised Rule Obj. Removed 08/20/92 

25 NCAC II . 1903 - Applicant Information and Application RRC Objection 07/16/92 

Agency Revised Rule Obj. Removed 08/20/92 

25 NCAC 11 .2401 - System Portion I: Recruitment. Selection. & Advancement RRC Objection 07/16/92 

Agency Revised Rule Obj. Removed 08/20/92 

25 NCAC 11 .2402 - System Portion II: Classification/Compensation RRC Objection 07/16/92 

Agency Revised Rule Obj. Removed 08/20/92 

25 NCAC 11 .2403 - System Portion III: Training RRC Objection 07/16/92 

Agency Revised Rule Obj. Removed 08/20/92 

25 NCAC II .2404 - System Portion IV: Employee Relations RRC Objection 07/16/92 

Agency Revised Rule Obj. Removed 08/20/92 

25 NCAC 11 .2405 - System Portion V: Equal Emp Oppty I Affirmative Action RRC Objection 07/16/92 

Agency Revised Rule Obj. Removed 08/20/92 

25 NCAC II .2406 - System Portion VI: Political Activity RRC Objection 07/16/92 

Agency Revised Rule Obj. Removed 08/20/92 

25 NCAC U . 1005 - Eligibility for Services RRC Objection 05/21/92 

Agency Revised Rule Obj. Removed 06/18/92 

TRANSPORTATION 

Division of Highways 



19A NCAC 2B .0164 - Use of Right of Way Consultants 
19A NCAC 2B .0165 - Asbestos Contracts with Private Firms 



RRC Objection 
RRC Objection 



09/17/92 
08/20/92 



1426 



7:14 NORTH CAROLINA REGISTER October 15, 1992 



RULES INVALIDATED BY JUDICIAL DECISION 



1 his Section of the Register lists the recent decisions issued by the North Carolina Supreme Court, 
Court of Appeals, Superior Court (when available), and the Office of Administrative Hearings which 
invalidate a rule in the North Carolina Administrative Code. 



1 NCAC 5 A .0010 - ADMINISTRATIVE PROCEDURES 

Thomas R. West, Administrative Law Judge with the Office of Administrative Hearings, declared two portions 
of Rule 1 NCAC 5A .0010 void as applied in Stauffer Information Systems, Petitioner v. The North Carolina 
Department of Community Colleges and The North Carolina Department of Administration , Respondent and 
Tlie University of Southern California, lntervenor-Respondent (92 DOA 0666). 

15A NCAC 19A .0202(d)(10) - CONTROL MEASURES - HIV 

Brenda B. Becton, Administrative Law Judge with the Office of Administrative Hearings, declared Rule 15A 
NCAC 19A .0202(d)(10) void as applied in ACT-UP TRIANGLE (AIDS Coalition to Unleash Power Triangle), 
Steven Harris, and John Doe, Petitioners v. Commission for Health Services of the State of North Carolina, 
Ron Levine, as Assistant Secretary of Health and State Health Director for the Department of Environment , 
Health, and Natural Resources of the State of North Carolina, William Cobey, as Secretary of the Department 
of Environment , Health, and Natural Resources of the State of North Carolina, Dr. Rebecca Meriwether, as 
Chief Communicable Disease Control Section of the North Carolina Department of Environment, Health, and 
Natural Resources, Wayne Bobbin Jr. , as Chief of the HIV/STD Control Branch of the North Carolina 
Department of Environment, Health, and Natural Resources, Respondents (91 EHR 0818). 



7:14 NORTH CAROLINA REGISTER October 15, 1992 1427 



CONTESTED CASE DECISIONS 



1 his Section contains the full text of some of the more significant Administrative Law Judge decisions 
along with an index to all recent contested cases decisions which are filed under North Carolina 's 
Administrative Procedure Act. Copies of the decisions listed in the index and not published are available 
upon request for a minimal charge by contacting the Office of Administrative Hearings, (919) 733-2698. 



KEY TO CASE CODES 



ABC Alcoholic Beverage Control Commission DST 

BDA Board of Dental Examiners EDC 

BME Board of Medical Examiners EHR 

BMS Board of Mortuary Science 

BOG Board of Geologists ESC 

BON Board of Nursing HAF 

BOO Board of Opticians HRC 

CFA Commission for Auctioneers IND 

COM Department of Economic and Community INS 

Development LBC 

CPS Department of Crime Control and Public Safety MLK 

CSE Child Support Enforcement NHA 

DAG Department of Agriculture OAH 

DCC Department of Community Colleges OSP 

DCR Department of Cultural Resources PHC 

DCS Distribution Child Support 

DHR Department of Human Resources POD 

DOA Department of Administration SOS 

DOJ Department of Justice SPA 

DOL Department of Labor 

DSA Department of State Auditor WRC 



Department of State Treasurer 
Department of Public Instruction 
Department of Environment, Health, and 
Natural Resources 
Employment Security Commission 
Hearing Aid Dealers and Fitters Board 
Human Relations Committee 
Independent Agencies 
Department of Insurance 
Licensing Board for Contractors 
Milk Commission 

Board of Nursing Home Administrators 
Office of Administrative Hearings 
Office of State Personnel 
Board of Plumbing and Heating 
Contractors 

Board of Podiatry Examiners 
Department of Secretary of State 
Board of Examiners of Speech and Language 
Pathologists and Audiologists 
Wildlife Resources Commission 



CASE NAME 


CASE 
NUMBER 


ALJ 


FILED 
DATE 


Anne R. Gwaltney, Milton H. Askew, Jr. 

and Anna L. Askew 

v. 

EHR and Pamlico County Health Department 


89 DHR 0699 


Reilly 


07/17/92 


Eleanor R. Edgerton-Taylor 

v. 

Cumberland County Department of Social Services 


89 OSP 1141 


Morrison 


08/18/92 


Annette Carlton 
v. 

Cleveland County Department of Social Services 


90 OSP 0024 


Chess 


08/14/92 


Janice Parker Haughton 

v. 

Halifax County Mental Health, Mental Retardation, 

Substance Abuse Program 


90 OSP 0221 


West 


08/18/92 



1428 



7:14 NORTH CAROLINA REGISTER October 15, 1992 



CONTESTED CASE DECISIONS 



CASE NAME 


CASE 
NUMBER 


ALJ 


FILED 
DATE 


Carolina Water Service, Inc. 

v. 

EHR, Division of Environmental Management 


90 EHR 0415 


West 


09/11/92 


CSX Transportation, Inc. 

v. 

Department of Environment, Health, & Natural Resources 


90 EHR 0628 


Reilly 


07/17/92 


Bruce Keeter 

v. 

Beaufort County Health Department 


90 EHR 0666 


Morgan 


07/28/92 


Christine Hill 

v. 

Crime Victims Compensation Commission 


90 CPS 0876 


Morgan 


08/24/92 


JHY Concord, Inc. 

v. 
Department of Labor 


90 DOL 1421 


Morgan 


07/28/92 


Lick Fork Hills, Inc., Marion Bagwell, President 

v. 

Department of Environment. Health, & Natural Resources 


91 EHR 0023 


Morgan 


07/28/92 


Albert J. Johnson 

v. 

N.C. Victims Compensation Commission 


91 CPS 0038 


Morgan 


07/28/92 


Frank Beal, T/A Wild Wild West 

v. 

Alcoholic Beverage Control Commission 


91 ABC 0164 


Morgan 


09/10/92 


William B. Holden 

v. 

Department of Environment, Health, & Natural Resources 


91 EHR 0176 


Morgan 


08/18/92 


Brenda P. Price 

v. 

North Carolina Central University 


91 OSP0219 


Morrison 


08/21/92 


Century Care of Laurinburg, Inc. 

v. 

DHR, Division of Facility Services, Licensure Section 


91 DHR 0257 


West 


06/30/92 


Kenneth E. Fletcher 

v. 

University of North Carolina at Greensboro 


91 OSP0315 


Chess 


09/15/92 


Richard L. Gainey 

v. 

Department of Justice 


91 OSP 0341 


Becton 


08/10/92 


Wade Charles Brown, Jr. 

v. 

N.C. Crime Victims Compensation Commission 


91 CPS 0345 


Chess 


07/08/92 



7:14 NORTH CAROLINA REGISTER October 15, 1992 



1429 



CONTESTED CASE DECISIONS 



CASE NAME 


CASE 
NUMBER 


ALJ 


FILED 
DATE 


Jackie Bruce Edwards 

v. 

DHR, Western Carolina Center 


91 OSP 0354 


West 


08/20/92 


Central Transport, Inc. 

v. 

Department of Environment, Health, & Natural Resources 


91 EHR 0402 


Morrison 


09/25/92 


Robert C. Howell 

v. 

Department of Correction 


91 OSP 0407 


Morgan 


08/26/92 


Charles E. Roe 

v. 
Department of Environment, Health, & Natural Resources 


91 OSP 0520 


Nesnow 


07/23/92 


Jerry J. Parker 

v. 
Department of Correction 


91 OSP 0546 


Morgan 


08/26/92 


Air-A-Plane Corporation 

v. 

Department of Environment, Health, & Natural Resources 


91 EHR 0636 


Nesnow 


09/04/92 


Lisa M. Reichstein 

v. 

Office of Student Financial Aid, East Carolina University 


91 OSP 0662 


Nesnow 


06/24/92 


Hudson's "The Acres" Rest Home 

v. 

DHR, Division of Facility Services, Licensure Section 


91 DHR 0665 


Chess 


09/09/92 


Bobby R. Graham 

v. 

DHR, Caswell Center 


91 OSP 0695 


Nesnow 


09/21/92 


DHR, Division of Facility Svcs, Child Day Care Section 

v. 
Mary Goodwin, Jean Dodd, D/B/A Capital City Day Care 

Center 


91 DHR 0720 


Morgan 


07/30/92 


Kenneth Helms 

v. 

Department of Human Resources 


91 OSP 0729 


Chess 


07/15/92 


Lloyd C. Neely 

v. 

Department of Correction 


91 OSP 0756 


Morgan 


09/10/92 


Alcoholic Beverage Control Commission 

v. 

Daniels Investments, Inc., t/a Leather & Lace - East 

4205 Monroe Road, Charlotte, N.C. 28205 


91 ABC 0799 


Mann 


07/14/92 



1430 



7:14 NORTH CAROLINA REGISTER October 15, 1992 



CONTESTED CASE DECISIONS 



CASE NAME 


CASE 
NUMBER 


ALJ 


FILED 
DATE 


Zelma Babson 

v. 

Brunswick County Health Department 


91 OSP 0804 


Gray 


08/14/92 


ACT-UP Triangle (AIDS Coalition to Unleash Power 

Triangle, Steven Harris, and John Doe 

v. 

Commission for Health Services of the State of N.C, Ron 

Levine, as Assistant Secretary of Health and State Health 

Director for EHR of the State of N.C., William Cobey, as 

Secretary of EHR of the State of N.C., Dr. Rebecca 

Meriwether, as Chief, Communicable Disease Control 

Section of the N.C. EHR, Wayne Bobbin, Jr., as Chief of 

the HIV/STD Control Branch of the N.C. EHR 


91 EHR 0818 


Becton 


07/08/92 


Jane C. O'Malley, Melvin L. Cartwright 
v. 
EHR and District Health Department Pasquotank- 
Perquimans-Camden-Chowan 


91 EHR 0838 


Becton 


07/02/92 


Cheryl Veronica McNeal 

v. 

Criminal Justice Education & Training Stds Comm 


91 DOJ 0861 


Morgan 


09/22/92 


Thomas E. Vass 

v. 

James E. Long, Department of Insurance 


91 INS 0876 


Morrison 


08/14/92 


William Paul Fearrington 

v. 

University of North Carolina at Chapel Hill 


91 OSP 0905 


Reilly 


08/28/92 


Olde Towne Partnership and Tryon Realty Co. 

v. 

EHR, Division of Coastal Management 


91 EHR 0909 


Morrison 


09/16/92 


Gerald R. Pruitt 

v. 

Department of Correction 


91 OSP 0933 


Gray 


09/14/92 


Jones Grading & Fencing, Inc. 

v. 
EHR, Solid Waste Management 


91 EHR 0956 
91 EHR 0324 


Nesnow 


09/28/92 


Grotgen Nursing Home, Inc., Britthaven, Inc. 

v. 

Certificate of Need Section, Div of Facility Svcs, DHR 


91 DHR 0964 
91 DHR 0966 


Nesnow 


07/06/92 


Anthony J. Carter 

v. 

DHR, Division of Social Services, CSE 


91 CSE 0975 


Nesnow 


09/17/92 


Ramona S. Smith, R.N. 

v. 
N.C. Teachers'/St Emps' Comp Major Medical Plan 


91 DST 0984 


Chess 


06/18/92 



7:14 NORTH CAROLINA REGISTER October 15, 1992 



1431 



CONTESTED CASE DECISIONS 



CASE NAME 


CASE 
NUMBER 


ALJ 


FILED 
DATE 


Jarrett Dennis Swearengin 

v. 

DHR, Division of Social Services, CSE 


91 CSE 0986 


Becton 


09/14/92 


Charles H. Yates, Power of Attorney for Ruth Yates 

v. 
N.C. Teachers'/St Emps' Comp Major Medical Plan 


91 INS 1008 


Reilly 


08/21/92 


Walter McGlone 

v. 

DHR, Division of Social Services, CSE 


91 CSE 1030 


Morrison 


07/13/92 


William Oscar Smith 

v. 

DHR, Division of Social Services. CSE 


91 CSE 1042 


Gray 


07/24/92 


William Watson 

v. 

DHR, Division of Social Services, CSE 


91 CSE 1047 


Becton 


07/08/92 


Robert D. Daniels Jr. 

v. 

DHR. Division of Social Services. CSE 


91 CSE 1048 


Morrison 


08/27/92 


Marie McNeill-Pridgen 

v. 

Department of Environment. Health. & Natural Resources 


91 EHR 1059 


Nesnow 


07/17/92 


Catawba Memorial Hospital 

v. 

DHR. Div of Facility Svcs, Certificate of Need Section 

and 
Frye Regional Medical Ctr, Inc. and Amireit (Frye), Inc. 

and 

Thorns Rehabilitation Hospital Health Services Corp. 

and 

Frye Regional Medical Ctr, Inc. and Amireit (Frye), Inc. 

v. 
DHR. Div of Facility Svcs. Certificate of Need Section 

and 

Thorns Rehabilitation Hospital Health Services Corp. 

and 

Catawba Memorial Hospital 


91 DHR 1061 
91 DHR 1087 


Reilly 


07/13/92 


Edward R. Peele 

v. 

Sheriffs" Education & Training Stds. Commission 


91 DOJ 1092 


Morrison 


08/18/92 


Charles Lawton Roberts 

v. 

DHR, Division of Social Services, CSE 


91 CSE 1097 


Becton 


09/14/92 


William Torres 

v. 

Dept of Justice. Lacy H. Thornburg, Attorney General 


91 DOJ 1098 


Morrison 


08/07/92 



1432 



7:14 NORTH CAROLINA REGISTER October 15, 1992 



CONTESTED CASE DECISIONS 



CASE NAME 


CASE 
NUMBER 


ALJ 


FILED 
DATE 


Wade A. Burgess 

v. 

DHR, Division of Social Services, CSE 


91 CSE 1114 


Gray 


07/01/92 


Sammie L. Anderson 

v. 

DHR, Division of Social Services, CSE 


91 CSE 1155 


Mann 


09/01/92 


Harry L. King 

v. 

Department of Transportation 


91 OSP 1162 


Morgan 


07/13/92 


Gilbert Lockhart 

v. 

DHR, Division of Social Services, CSE 


91 CSE 1178 


Morrison 


07/30/92 


Isaac H. Galloway 

v. 

DHR, Division of Social Services, CSE 


91 CSE 1190 


Reilly 


06/30/92 


Russell A. Barclift 

v. 

DHR, Division of Social Services, CSE 


91 CSE 1207 

92 CSE 0275 


Reilly 


06/30/92 


Barnabas D. Frederick 

v. 

DHR, Division of Social Services, CSE 


91 CSE 1216 


Nesnow 


09/15/92 


Herman Edward Main II 

v. 

DHR, Division of Social Services, CSE 


91 CSE 1225 


Nesnow 


07/07/92 


Albert Louis Stoner III 

v. 

DHR, Division of Social Services, CSE 


91 CSE 1244 


Gray 


07/01/92 


James E. Greene 

v. 

DHR, Division of Social Services, CSE 


91 CSE 1245 


Nesnow 


07/14/92 


Joseph W. Harris 

v. 

DHR, Division of Social Services, CSE 


91 CSE 1247 


Morgan 


07/28/92 


Celvis M. Burns 

v. 

DHR, Division of Social Services, CSE 


91 CSE 1256 


Mann 


09/01/92 


Rodney Powell 

v. 

DHR, Division of Social Services, CSE 


91 CSE 1257 


Morgan 


07/29/92 


Miles G. Griffin Jr. 

v. 
DHR, Division of Social Services, CSE 


91 CSE 1270 


Gray 


08/27/92 



7:14 NORTH CAROLINA REGISTER October 15, 1992 



1433 



CONTESTED CASE DECISIONS 



CASE NAME 


CASE 
NUMBER 


ALJ 


FILED 
DATE 


Gerald E. Anthony 

v. 

DHR, Division of Social Services, CSE 


91 CSE 1274 


Mann 


09/01/92 


Floyd L. Rountree 

v. 

DHR, Division of Social Services, CSE 


91 CSE 1275 


Morgan 


07/22/92 


Ruth Smith Hensley Shondales 

v. 

ABC Commission 


91 ABC 1280 


Chess 


08/05/92 


Rasoul Behboudi 

v. 

DHR, Division of Social Services, CSE 


91 CSE 1313 


Morrison 


09/15/92 


City-Wide Asphalt Paving, Inc. 

v. 

Department of Environment, Health, & Natural Resources 


91 EHR 1360 


Chess 


07/01/92 


Alcoholic Beverage Control Commission 

v. 

Tre Three, Inc.. T/A Crackers, 

Airport Rd., Rockingham, NC 28379 


91 ABC 1372 


Chess 


07/07/92 


Alcoholic Beverage Control Commission 

v. 

Rode Enterprises, Inc.. T/A Jordan Dam Mini Mart 


91 ABC 1388 


Gray 


07/30/92 


Blythe M. Bragg 

v. 
University of North Carolina at Chapel Hill 


91 OSP 1421 


Nesnow 


09/08/92 


David W. Williams 

v. 

DHR. Division of Social Services, CSE 


91 CSE 1423 


Morrison 


09/10/92 


Donald R. Allison 

v. 

DHR, Caswell Center 


91 OSP 1427 


Reilly 


06/30/92 


Alfred Rees 
v. 

Department of Environment, Health, & Natural Resources 


92 EHR 0004 


Reillv 


09/03/92 


Mrs. S. 

v. 

Washington County Board of Education 


92 EDC 0023 


Mann 


08/28/92 


Rudolph Tripp 

v. 

Department of Correction 


92 OSP 0024 


Gray 


08/27/92 


Lavern Fesperman 

v. 

Mecklenburg County 


92 OSP 0030 


Chess 


07/17/92 



1434 



7:14 NORTH CAROLINA REGISTER October 15, 1992 



CONTESTED CASE DECISIONS 



CASE NAME 


CASE 
NUMBER 


ALJ 


FILED 
DATE 


Paul J. Nonkes 

v. 

Halifax County Health Dept. (Jeff Dillard. Sanitarian) 


92 EHR 0058 


Becton 


08/28/92 


Carrolton of Williamston, Inc. 

v. 

DHR, Division of Facility Services, Licensure Section 


92 DHR 0071 


Becton 


08/19/92 


Fred Jennings Moody Jr. 

v. 

Sheriffs' Education & Training Stds. Commission 


92 DOJ 0084 


Chess 


07/17/92 


Ronnie Lamont Donaldson 

v. 

Sheriffs' Education & Training Standards Commission 


92 DOJ 0092 


Reilly 


07/27/92 


Vernice V. Battle 

v. 

Sheriffs' Education & Training Standards Commission 


92 DOJ 0093 


Becton 


08/28/92 


Hudson's "The Acres" Rest Home 

v. 

DHR, Division of Facility Services, Licensure Section 


92 DHR 0100 


Chess 


09/04/92 


Marvin Helton, Jean Helton 

v. 

DHR, Division of Facility Services 


92 DHR 0102 


Chess 


08/14/92 


Leo Scott Wilson 

v. 

Department of Environment, Health, & Natural Resources 


92 EHR 0112 


Reilly 


08/26/92 


Peggy N. Barber 

v. 

The University of North Carolina at Chapel Hill 


92 OSP 0120 


Reilly 


07/13/92 


Alcoholic Beverage Control Commission 

v. 

John Wade Lewis, t/a Tasty Grill 


92 ABC 0145 


Nesnow 


07/15/92 


Licensing Board for General Contractors 

v. 

Wright's Construction. Inc. (Lie. No. 23065) 


92 LBC 0172 


Gray 


07/31/92 


Richard L. Banks 

v. 

Pasquotank-Perquimans-Camden-Chowan District Health 

Department (PPCC) & Department of Environment, 

Health, & Natural Resources 


92 EHR 0175 


West 


08/25/92 


Hudson's "The Acres" Rest Home 

v. 

DHR, Division of Facility Services, Licensure Section 


92 DHR 0186 


Chess 


09/04/92 



7:14 NORTH CAROLINA REGISTER October 15, 1992 



1435 



CONTESTED CASE DECISIONS 



CASE NAME 


CASE 
NUMBER 


ALJ 


FILED 
DATE 


Ray Bryant 

v. 

Department of Labor, OSHA 


92 DOL 0187 


Nesnow 


08/07/92 


Herbert Hines Jr.. H & H 

v. 
Alcoholic Beverage Control Commission 


92 ABC 0189 


Becton 


07/22/92 


William Stevenson 

v. 

Department of Correction 


92 OSP 0201 


Chess 


09/03/92 


Frances B. Billingsley 

v. 

Bd. of Trustees/Teachers & St Employees Retirement Sys 


92 DST 0205 


Morgan 


08/18/92 


Glenn E. Myers 

v. 

Department of Correction 


92 OSP 0217 


Reilly 


09/14/92 


Lawrence Neal Murrill T/A Knox, 507 1st St SW. 

Hickory. NC 28602 

v. 

Alcoholic Beverage Control Commission 


92 ABC 0220 


Chess 


08/03/92 


Town of Denton 

v. 

Department of Environment, Health, & Natural Resources 


92 EHR 0241 


Reilly 


07/30/92 


Alcoholic Beverage Control Commission 

v. 

Byrum's of Park Road, Inc., T/A Byrum's Restaurant 


92 ABC 0252 


Gray 


07/30/92 


Alcoholic Beverage Control Commission 

v. 
Leo's Delicatessen #2. Inc., T/A Leo's #2 


92 ABC 0255 


Gray 


07/30/92 


North Topsail Water & Sewer, Inc. 

v. 

Department of Environment. Health. & Natural Resources 


92 EHR 0266 


Morrison 


08/12/92 


Raymond O. and Rita Halle, and the Town of Boone 

v. 
EHR. Division of Land Resources 


92 EHR 0267 
92 EHR 0376 


Gray 


09/18/92 


Henry Thomas Tart 

v. 

DHR. Division of Social Services. CSE 


92 CSE 0283 


Nesnow 


09/15/92 


Virginia Devenny 

v. 

The University of North Carolina at Charlotte 


92 OSP 0301 


Reilly 


09/22/92 



1436 



7:14 NORTH CAROLINA REGISTER October IS, 1992 



CONTESTED CASE DECISIONS 



CASE NAME 


CASE 
NUMBER 


ALJ 


FILED 

DATE 


Henry Lane, D/B/A Emerald Health Care Acute Care Ctr 

v. 
DHR, Div of Facility Services, Certificate of Need Section 

and 

Bowman-Richardson Health Care, Inc. D/B/A Wilkes 

Senior Village 


92 DHR 0308 


Gray 


08/28/92 


Azmi Sider, Midtown Mini Mart 

v. 

EHR, Division of Maternal and Child Health, WIC Section 


92 EHR 0317 


Nesnow 


09/16/92 


Gerald G. Strickland 

v. 

Crime Control and Public Safety 


92 CPS 0320 


Chess 


09/10/92 


Jonathan L. Fann 

v. 

U.N.C. Physical Plant, Herb Paul, Louis Herndon, Dean 

Justice, Bruce Jones 


92 OSP 0363 


Becton 


08/19/92 


Douglas A. Bordeaux 

v. 

Department of Correction 


92 OSP 0378 


Chess 


07/10/92 


Clifton R. Johnson 

v. 

O'Berry Center, Department of Human Resources 


92 OSP 0381 


West 


07/08/92 


Southeastern Machine & Tool Company, Inc. 

v. 

Department of Environment, Health, & Natural Resources 


92 EHR 0386 


Becton 


07/20/92 


Louvenia Clark 

v. 

Edgecombe County Department of Social Services 


92 OSP 0402 


Reilly 


08/21/92 


Raleigh F. LaRoche 

v. 

Child & Family Services of Wake County 


92 OSP 0409 


Becton 


08/24/92 


Ellwin C. Wetherington Jr. 

v. 

DHR, Division of Social Services. CSE 


92 CSE 0419 


Morrison 


09/28/92 


Paul Reeves, Youth University Child Care 

v. 

Child Day Care Section, Division of Facility Svcs 


92 DHR 0424 


West 


08/21/92 


Mr. & Mrs. James C. Stanton 

v. 

Charlotte-Mecklenburg School System 


92 EDC 0430 


Nesnow 


08/04/92 


James Cooper Lewis 

v. 

Sheriffs' Education & Training Standards Commission 


92 DOJ 0461 


Reilly 


09/15/92 



7:14 NORTH CAROLINA REGISTER October IS, 1992 



1437 



CONTESTED CASE DECISIONS 



CASE NAME 


CASE 
NUMBER 


ALJ 


FILED 
DATE 


Alcoholic Beverage Control Commission 

v. 

508 Investors, Inc., t/a Johnathon's Restaurant 


92 ABC 0476 


Nesnow 


09/24/92 


Jon David Amundson 

v. 

Davidson County Mental Health 


92 OSP 0503 


Becton 


09/10/92 


Northview Mobile Home Park 

v. 

Department of Environment. Health, & Natural Resources 


92 EHR 0507 


Reilly 


07/13/92 


Yolanda Lynn Bethea 

v. 

DHR, Division of Social Services, CSE 


92 DCS 0513 


Becton 


08/14/92 


Alice Hunt Davis 

v. 

Department of Human Resources 


92 OSP 0526 


West 


07/16/92 


Jimmy F. Bailey Sr. 
v. 

Department of State Treasurer. Retirement Systems Div 


92 DST 0536 


Morgan 


08/18/92 


Bramar, Inc., t/a Spike"s 

v. 

Alcoholic Beverage Control Commission 


92 ABC 0554 


Mann 


08/13/92 


Grady Lockhart Jr. 

v. 

DHR, Division of Social Services, CSE 


92 CSE 0565 


Becton 


09/28/92 


Ralph J. Ogburn 

v. 

Private Protective Services Board 


92 DOJ 0571 


Nesnow 


08/07/92 


George M. Hagans 

v. 

DHR, (Cherry Hospital) 


92 OSP 0583 


Morgan 


09/21/92 


Gilbert Todd Sr. 

v. 

Public Water Supply Section 


92 EHR 0586 


Morrison 


08/06/92 


Candance Y. Johnson 
v. 

Division of Motor Vehicles 


92 DOT 0589 


Becton 


08/24/92 


John W. Surles 

v. 

N.C. Crime Victims Compensation Commission 


92 CPS 0595 


Reilly 


07/13/92 


Pamela Jean Gass 

v. 

DHR. Division of Social Services. CSE 


92 DCS 0623 


Morrison 


08/14/92 



1438 



7:14 NORTH CAROLINA REGISTER October 15, 1992 



CONTESTED CASE DECISIONS 



CASE NAME 


CASE 
NUMBER 


ALJ 


FILED 
DATE 


J.W. Reed 

v. 

Department of Correction 


92 OSP 0638 


Morrison 


08/11/92 


Carson Davis 

v. 

Department of Correction 


92 OSP 0650 


Reilly 


08/10/92 


Luther Hall Clontz 

v. 

Western Carolina Center (NC of Human Resources) 


92 OSP 0652 


Becton 


09/10/92 


Private Protective Services Board 

v. 

Mark Andrew Perry 


92 DOJ 0662 


Becton 


09/10/92 


Stauffer Information Systems 

v. 

Department of Community Colleges and the N.C. 

Department of Administration 

and 

The University of Southern California 


92 DOA 0666 


West 


07/08/92 


Dortheia B. Marley 

v. 

Department of Correction 


92 OSP 0667 


West 


09/28/92 


Nancy J. Tice 

v. 

Administrative Off of the Courts, Guardian Ad Litem Svcs 


92 OSP 0674 


Morrison 


08/11/92 


L. Stan Bailey 

v. 

Chancellor Moran and UNC-Greensboro 


92 OSP 0679 


West 


07/10/92 


Arnold McCloud T/A Club Castle 

v. 

Alcoholic Beverage Control Commission 


92 ABC 0681 


Morrison 


07/25/92 


Joyce Faircloth, T/A Showcase Lounge 

v. 
Alcoholic Beverage Control Commission 


92 ABC 0713 


Morrison 


07/25/92 


James B. Price 

v. 

Department of Transportation 


92 OSP 0725 


Mann 


09/02/92 


Edmonia Lang 

v. 

Carteret County Board of Education 


92 OSP 0736 


Mann 


08/28/92 


Larry Bruce High 

v. 

Alarms Systems Licensing Board 


92 DOJ 0755 
92 DOJ 0785 


Nesnow 


08/25/92 



7:14 NORTH CAROLINA REGISTER October 15, 1992 



1439 



CONTESTED CASE DECISIONS 



CASE NAME 


CASE 
NUMBER 


ALJ 


FILED 
DATE 


Rosie W. Harrell 

v. 
Administrative Office of the Courts 


92 OSP 0846 


West 


09/17/92 


Robert Aiken 

v. 

Department of Correction 


92 OSP 0872 


Gray 


09/25/92 


Daniel N. Jones 

v. 

N.C. Victims Compensation Commission 


92 CPS 0879 


Chess 


08/28/92 



t 



( 



( 



1440 



7:14 NORTH CAROLINA REGISTER October 15, 1992 



CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLINA 



COUNTY OF GUILFORD 



IN THE OFFICE OF 
ADMINISTRATTVE HEARINGS 
91 OSP 0315 



KENNETH E. FLETCHER, 

Petitioner, 

v. 

UNIVERSITY OF NORTH 
CAROLINA AT GREENSBORO, 

Respondent. 



RECOMMENDED DECISION 



BACKGROUND 

The Petitioner filed for a contested case hearing on April 5, 1991, in order to appeal the March 5, 
1991 decision of the Respondent Agency to uphold the Petitioner's three-day suspension from work as an 
employee in the Physical Plant at the University of North Carolina at Greensboro (UNC-G), for personal 
conduct. 

The Respondent contends that the Petitioner was suspended for three days without pay for just cause 
after he engaged in verbal and physical aggression with a department manager. The Petitioner contends that 
the Respondent lacked just cause to suspend him for three days without pay. 

The appeal of Kenneth E. Fletcher, employee of University of North Carolina at Greensboro, was 
heard by Administrative Law Judge, Sammie Chess, Jr., on June 11, 1992, in High Point, North Carolina. 
The record closed on September 2, 1992, when the parties completed the filing of their proposed findings of 
facts and conclusions and final arguments. 

APPEARANCES 



For the Petitioner: 



Kenneth E. Fletcher, Pro Se. 
1407 Guyer Street 
High Point, NC 27265 



For the Respondent: 



Anne J. Brown 

Associate Attorney General 

N.C. Department of Justice 

P.O. Box 629 

Raleigh, NC 27602-0629 



WITNESSES 



For the Petitioner: 



Kenneth E. Fletcher 
Stan Bailey 
Bob Lewis 



For the Respondent: 



C. Scott Willard 
Harvey Saunders 



7:14 NORTH CAROLINA REGISTER October 15, 1992 



1441 



CONTESTED CASE DECISIONS 



Jack L. Colby 
Ted White 

ISSUES 

1 . Did Respondent have just cause to suspend Petitioner for three days without pay for personal 
misconduct? 

STATUTES AND RULES INVOLVED 

North Carolina General Statute Section 126-35; 25 North Carolina Administrative Code. r. 01J:0608. 

SUMMARY OF DECISION 

Petitioner's three-day suspension without pay for personal misconduct should be vacated, and 
Petitioner should receive counseling as did his supervisor. It was the improper conduct of Petitioner's 
supervisor that set into motion the events complained of on August 29. 1990. 

EXHIBITS 

Editor's Note: The list of Exhibits has been omitted from publication. A copy may be obtained by contacting 
the Office of Administrative Hearings. 

Based on a preponderance of the substantial evidence admitted into the record of this case, the 
Administrative Law Judge makes the following: 

FINDINGS OF FACTS 

1. The Petitioner arrived at work on August 29, 1990. at approximately 7:55 A.M. The time 
clock showed 8:02 A.M. when Petitioner punched in. He is due to punch in before 8:00 A.M. 

2. At approximately 10:30 A.M. on August 29, 1990, Petitioner went to his supervisor, Harvey 
Saunders, to complain about the time clock running seven minutes fast. 

3. Petitioner told him someone needed to get the time clock fixed once and for all. His 
supervisor replied "Quit your bitching, if you would come to work on time you wouldn't have this problem." 

4. The problem with the time clock has been going on for a long time. Petitioner is docked 
fifteen minutes if the clock indicates he clocked in at 8:02 A.M. rather than 8:00 A.M. or before. Clocking 
in late, after 8:00 A.M. affects Petitioner's rights and privileges as an employee. 

5. Petitioner made many complaints about the defective clock. He also made many requests to 
get the clock fixed. Many of these complaints and requests were made to Mr. Harvey Saunders, his 
supervisor. 

6. During the course of this conversation Petitioner disagreed with the supervisor's statement 
to the effect that the clock was maintained regularly and the supervisor asked Petitioner "Are you calling me 
a liar?". Petitioner responded by saying. "Yes you're a fucking liar?". 

7. That Harvey Saunders' response to a legitimate concern was inappropriate. 

8. That the lanauaae and tone used by Harvev Saunders was demeaning, abusive, and 



1442 7:14 NORTH CAROLINA REGISTER October 15, 1992 



CONTESTED CASE DECISIONS 



aggressive, with a natural tendency to arouse hostility in the person addressed. 

9. Petitioner continued to insist that Mr. Saunders "fix" the clock, which had been "off" for 
years. Petitioner had discussed this problem with Harvey Saunders and Stan Bailey on a number of occasions 
and also Mr. Jack Colby about a year ago. The problem still had not been solved. 

10. From the record as a whole, there is no feeling that the events would have occurred, but for 
the remarks and attitude of Harvey Saunders. Petitioner did not approach Harvey Saunders in a hostile 
manner, but rather to urge that something be done about the clock. 

1 1 . Petitioner's conduct, though inappropriate and not to be condoned, was precipitated by the 
conduct of his supervisor. 

12. Harvey Saunders and Kenneth Helms shook hands the next day and apologized to each other 
and things are back to normal between them. 

13. Petitioner would benefit from counseling. 

Based upon the foregoing findings of fact, the undersigned Administrative Law Judge makes the 
following: 

CONCLUSIONS OF LAW 

1. Petitioner was a permanent State employee at the time of his three-day suspension. Because 
he has alleged that Respondent lacked just cause for his suspension, the Office of Administrative Hearings has 
jurisdiction to hear his appeal and issue a recommendation to the State Personnel Commission which shall 
make the final decision in the matter. North Carolina General Statutes 126-35, 126-37, 126-39, 150B-23 and 
150B-36. 

2. North Carolina General Statute 126-35 provides, in part, "that no permanent employee subject 
to the State Personnel Act shall be discharged, suspended, or reduced in pay or position, except for just cause. 
"Where just cause is an issue, the Respondent bears the ultimate burden of persuasion. A just cause issue 
carries both substantive and procedural questions. Causes for dismissal fall into two (2) categories: (1) causes 
relating to performance of duties, and (2) causes relating to personal conduct detrimental to State service. 

3. Respondent has not met its burden of showing just cause for suspending Petitioner for three 
days without pay for personal misconduct. The record shows that the supervisor, also subject to the APA, 
was equally responsible, if not more, received only counseling. 

4. Office of State Personnel rule, 25 NCAC r. 01J.0608 (a) (August 1991), provides, in 
pertinent part as follows: 

Employees may be dismissed, demoted, suspended or warned on the basis 
of unacceptable personal conduct. Discipline may be imposed, as a result 
of unacceptable conduct, up to and including dismissal without any prior 
warning to the employee. 

5. The Respondent Agency's three-day suspension of Petitioner versus Harvey Saunders getting 
counseling amounts to treating parties differently who are subject to the same APA rules. In doing so, the 
agency acted erroneously, failed to use proper procedure, and acted arbitrarily in violation of North Carolina 
General Statute Section 150B-23. 



7:14 NORTH CAROLINA REGISTER October 15, 1992 1443 



CONTESTED CASE DECISIONS 



6. Petitioner approached his supervisor. Harvey Saunders, with a legitimate concern and had 

a right to expect a proper attitude and response from him. The complaint was one that was within his area 
of supervision. 

Based on the above. Findings of Fact and Conclusions of Law. the Administrative Law Judge makes 
the following: 

RECOMMENDED DECISION 

1. That Petitioner's three-day suspension for personal conduct be vacated; 

2. That Petitioner should receive counseling, as did his supervisor, 

3. That Petitioner is entitled to recover back pay for the three days of suspension rendered 
against him; 

4. That the Petitioner's personnel record be cleared and any new entry should reflect an 
adjustment which indicates discipline not to exceed counseling. 

ORDER 

It is hereby ordered that the agency serve a copy of the final decision on the Office of Administrative 
Hearings. P.O. Drawer 27447. Raleigh. N.C. 2761 1-7447. in accordance with North Carolina General Statute 
150B-36(b). 

NOTICE 

The agency making the final decision in this contested case is required to give each party an 
opportunity to file exceptions to this recommended decision and to present written arguments to those in the 
agency who will make the final decision. G.S. 150B-36(a). 

The agency is required by G.S. 150B-36(b) to serve a copy of the final decision on all parties and to 
furnish a copy to the parties" attorney of record and to the Office of Administrative Hearings . 

The agency that will make the final decision in this contested case is the State Personnel Commission. 

This the 15th day of September. 1992. 



Sammie Chess. Jr. 
Administrative Law Judge 



1444 7:14 NORTH CAROLINA REGISTER October 15, 1992 



CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLINA 



COUNTY OF RANDOLPH 



IN THE OFFICE OF 
ADMINISTRATIVE HEARINGS 
91 EHR 0402 



CENTRAL TRANSPORT, INC. 
Petitioner, 

v. 

NORTH CAROLINA DEPARTMENT 
OF ENVIRONMENT, HEALTH AND 
NATURAL RESOURCES, 

Respondent. 



RECOMMENDED DECISION 



The appeal of Central Transport, Inc., was filed after Respondent denied its application for a Pump 
and Haul permit. The parties have participated in several conferences with the Administrative Law Judge, 
agreed upon the facts, and filed proposals for a recommended decision. 



FOR THE PETITIONER: 



FOR THE RESPONDENT: 



APPEARANCES 

Mark E. Fogel 
Attorney at Law 
5 W. Hargett, Suite 510 
Raleigh, N.C. 

The Honorable Lacy H. Thornburg, 
Attorney General, Raleigh, N. C. 
James C. Holloway, Associate 
Attorney General, appearing. 

ISSUES 



Whether Respondent's decision to deny Petitioner's application for a Pump and Haul permit should 
be affirmed or reversed. 

OPINION OF THE ADMTNISTRATTVE LAW JUDGE 

The parties have stipulated to the following: 

FINDINGS OF FACT 

Petitioner is a North Carolina corporation engaged in the business of ground transportation of 
chemical raw materials. 

Early in 1990, Petitioner entered into a contract with Albright and Wilson/Texas Gulf in Aurora to 
transport food grade phosphoric acid to their customers throughout the United States. 

The contract required that Central locate a truck terminal facility with internal and external truck wash 
in Aurora, North Carolina. 



7:14 NORTH CAROLINA REGISTER October 15, 1992 



1445 



CONTESTED CASE DECISIONS 



4. At that time, it was anticipated that the rinsate generated could be discharged to the Aurora sewer 
system pursuant to promising conversations with Aurora town officials. 

5. Thereafter in March 1990, Central made a formal request to the Town of Aurora, for Aurora to 
accept Central's wastewater from the truck wash. 

6. In August of 1990, the Town of Aurora declined to allow Central to hook onto its municipal system. 

7. Central's addition to the Town of Aurora's system would have triggered a pretreatment program start- 
up by Aurora, incurring substantial additional costs. 

8. Central then planned a facility in Aurora, on property it acquired, in which rinsate could be captured 
in a sump, pumped into a tank truck and taken to a facility approved by the State of South Carolina 
where it would be used as process water at the Giant Cement Company facility in Harleyville, South 
Carolina. 

9. On March 20, 1991, Central applied for a pump and haul permit from Respondent. 

10. The pump and haul application notes that the duration of the request was, "Until Town of Aurora 
Sewer can accept Central Transport wastewater. Estimated 2-3 years. Request waiver of 6 month 
limit." 

11. The last line of the application reads, "I will undertake all actions necessary to eliminate pump and 
haul activities on or before the expiration date of any permit issued." Central crossed out this last 
line and substituted the following, "I will undertake all actions necessary to eliminate pump and haul 
activities when Aurora sewer access becomes available." 

12. On April 11, 1991, Respondent denied Petitioner's request for a pump and haul permit because the 
proposed permit life was in excess of the maximum six (6) months established for pump and haul 
permits and because there was no alternative plan for waste disposal at the conclusion of the six (6) 
months. 

13. Petitioner filed a petition for contested case hearing on May 7, 1991. 

14. Respondent has been issuing pump and haul permits for almost twenty (20) years. Approximately 
ten (10) of the approximately fifty (50) pump and haul permit applications received annually are 
denied because of the same two (2) conditions mentioned herein. 

15. Respondent considers its pump and haul permit program to be a part of its non-discharge permit 
program. At the time of denial. Petitioner's non-discharge permit program regulations were found 
in 15A NCAC 2H .0200. Permit application fees and permit application required supporting 
documentation for non-discharge permits are found in 15A NCAC 2H .0205(c)(5) and (d)(1) 
respectively. 

16. Pump and haul operations are unacceptable on a long-term basis due to, among other things, spillage 
during transporting of waste. 

17. Petitioner's March 20, 1991, permit application lists the material being handled in the operation as 
"industrial wastewater." 

18. At the time of denial, 15A NCAC 2H .0200 contained no references whatsoever to pump and haul 
permits with respect to decision-making criteria. At the time of denial, the two (2) denial conditions 
had not been adopted by formal APA rule-making procedure. On June 1, 1992, Respondent proposed 
additions to 2H .0200 which for the first time contained a specific reference to pump and haul 
permits. 



1446 7:14 NORTH CAROLINA REGISTER October 15, 1992 



CONTESTED CASE DECISIONS 



19. The six (6) month maximum and alternative method of disposal requirements are permit conditions 

which the EMC, and by delegation, the Director, are authorized to include in permits per G.S. 143- 
215.1(a)'s ..."with such conditions, if any, as are prescribed by such permit..." 

Based on the above Findings of Fact, the Administrative Law Judge makes the following: 

CONCLUSIONS OF LAW 

1 . Because the denial conditions had not been adopted and promulgated by formal APA rule-making 
procedure the Respondent could not use them as the bases for denying Petitioner's application. 

2. Pursuant to G.S. 143-215. 1(a), Respondent could and should have approved Petitioner's application 
and issued a permit on condition that it would expire within six months or whenever a permanent on- 
site wastewater treatment and disposal system was secured, whichever occurred first. 

Based on the above Findings of Fact and Conclusions of Law, the Administrative Law Judge makes 
the following: 

RECOMMENDED DECISION 

That the decision of the Respondent to refuse to issue Petitioner a Pump and Haul permit be reversed, 
and that a permit be issued on the condition it will expire within six months or whenever a permanent on-site 
wastewater treatment and disposal system is secured, whichever occurs first. 

ORDER 

It is hereby ordered that the agency serve a copy of the final decision on the Office of Administrative 
Hearings, P.O. Drawer 27447. Raleigh, N.C. 2761 1-7447, in accordance with North Carolina General Statute 
150B-36(b). 

NOTICE 

The agency making the final decision in this contested case is required to give each party an 
opportunity to file exceptions to this recommended decision and to present written arguments to those in the 
agency who will make the final decision. G.S. 150B-36(a). 

The agency is required by G.S. 150B-36(b) to serve a copy of the final decision on all parties and to 
furnish a copy to the parties' attorney of record and to the Office of Administrative Hearings. 

The agency that will make the final decision in this contested case is the North Carolina Department 
of Environment, Health and Natural Resources. 



This the 25th day of September, 1992. 



Fred G. Morrison Jr. 

Senior Administrative Law Judge 



7:14 NORTH CAROLINA REGISTER October 15, 1992 1447 



CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLINA 
COUNTY OF ALAMANCE 



IN THE OFFICE OF 
ADMINISTRATIVE HEARINGS 
91 OSP 1421 



I 



BLYTHE M. BRAGG. 
Petitioner, 

v. 

UNIVERSITY OF NORTH CAROLINA 
AT CHAPEL HILL. 

Respondent. 



RECOMMENDED DECISION 



The above-captioned hearing was heard before Dolores O. Nesnow. Administrative Law Judge, on 
May 15 and May 29, 1992. in Chapel Hill, North Carolina. 

APPEARANCES 

For Petitioner: William R. Morris, Jr.. Esq. 

Attorney At Law 
157 1/2 E. Franklin Street 
Chapel Hill, North Carolina 27514 
Attorney for Petitioner 

For Respondent: Barbara A. Shaw 

Assistant Attorney General 

N. C. Department of Justice 

P.O. Box 629 

Raleigh, North Carolina 27602-0629 

Attorney for Respondent 

ISSUES 

1 . Did the Respondent have just cause to dismiss the Petitioner for personal misconduct? 

2. Did the Respondent follow the proper procedure in dismissing Petitioner effective April 11, 
1992° 

3. Did the reinstatement of Petitioner with full back pay to her former position (until she was 
dismissed effective December 18, 1991) fully compensate her for any alleged or actual error in the dismissal 
process effective April 11, 1991? 

STATUTES AND RULES IN ISSUE 

N.C. Gen. Stat. 126-35 

N.C. Admin. Code, tit. 25, r. IB .0400 et seg. 

N.C. Admin, code. tit. 25, r. IB .0503 

UNC Staff Personnel Administration Guide (SPAG) 37 and 38 

STIPULATION AGREEMENTS 

The Petitioner was a permanent State employee and was subject to the provisions of the State 
Personnel Act. 



( 



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1448 



7:14 NORTH CAROLINA REGISTER October 15, 1992 



CONTESTED CASE DECISIONS 



Editor's Note: List of exhibits has been omitted from publication in the Register . 

WITNESSES 

For Petitioner 

George M. Kingman, Director of Administration, Psychiatry Department 
Blythe M. Bragg, Petitioner 



For Respondent 

David S. Janowsky, Professor & Chairman, Department of Psychiatry 
William G. Richardson, Director of Computer Support Services 
Thomas C. Gray, Assistant Director of Computer Support Services 
Kelly Collier, Accounting Supervisor, Psychiatry Business Office 
Shirley Morter, Administrative Assistant to Dr. Janowsky 
Malinda Marsh, Administrative Secretary, Center for Alcohol Studies 
Alan Reberg, Business Manager, Psychiatry Department 



Based upon careful consideration of the testimony and evidence presented at the hearing, the 
documents and exhibits received into evidence, and the entire record in this proceeding, the undersigned 
makes the following: 

FINDINGS OF FACT 

1 . Petitioner, Blythe Bragg, a white female, began working for the Respondent, University of 
North Carolina at Chapel Hill, during March of 1976. 

2. By March of 1991, Petitioner held the position of Administrative Assistant II, a supervisory 
position, in the Department of Psychiatry. 

3. In the Spring of 1991, the Psychiatry Department consulted with the University's Computer 
Support Services to begin an updating of the Psychiatry Department's computer systems. 

4. It was determined that a contract computer employee ("consultant") should be hired to work 
in the Psychiatry Department in liaison with Computer Support Services. 

5. A young, black male was hired and began working in the Psychiatry Department. 

6. During the time he was there, the "consultant" made advances toward one or more of the 
female employees, which advances included a derogatory remark to Petitioner on one occasion. 

7. Petitioner determined that the "consultant" must be fired and she, in fact, fired him. 

8. Two of the employees with Computer Support Services, Tom Gray and William Richardson, 
having learned that the employee was fired, became concerned about the progress of the project in which they 
were involved. 

9. Mr. Gray and Mr. Richardson, both white males, came to the Psychiatry Department to talk 
with Petitioner and find out when a new "consultant" would be hired so that the project could continue. 

10. The Petitioner met with them but spoke only briefly about the project at which point she told 
them to talk to Kelly Collier, one of Petitioner's employees. Ms. Collier is a white female. 



7:14 NORTH CAROLINA REGISTER October 15, 1992 1449 



CONTESTED CASE DECISIONS 



Mr. Gray and Mr. Richardson then left Petitioner's office and went to Ms. Collier's office. 
While the two men were meeting with Ms. Collier, Petitioner came into the office and sat 



down. 



13. Mr. Gray and Mr. Richardson attempted to continue the meeting and discussed the dismissal 
of the original "consultant" and the plans for hiring a second "consultant." 

14. During these discussions. Petitioner abruptly stated, "I'm glad that nigger is gone; he acts 
like he just came out of the jungle and talks like he has a mouth full of mush." 

15. Mr. Gray and Mr. Richardson testified that they heard this statement during the meeting in 
Kelly Collier's office. 

16. Ms. Collier testified that she heard the Petitioner use the word "nigger" during the meeting. 

17. Petitioner testified that she does not remember making any such statement. 

18. The remark was subsequently reported to the Chairman of the Psychiatry Department, Dr. 
David Janowsky. Dr. Janowsky began investigating the allegation by talking with all those concerned, 
including Petitioner. 

19. Dr. Janowsky asked his Administrative Assistant, Shirley Morter, and Malinda Marsh, a 
previous Business Manager in the Department of Psychiatry, to look into the complaint which had been made. 

20. Respondent's policy, as stated in the University's Staff Personnel Administrative Guide 
(SPAG) 38, provides: 

The University intends that each Staff employee be treated with respect. 
Each Staff employee is responsible for treating other University associates 
with respect. He or she also is responsible for carrying out his or her 
assigned duties in a responsible manner. Each Staff employee is expected 
to maintain reasonable conduct and performance throughout University 
employment. 



21. SPAG 38. 2. J also provides that conduct and performance which interfere with University 
goals includes "using excessive or abusive, profane, obscene or derogatory language". 

22. During the course of the investigation. Dr. Janowsky met with Petitioner and informed her 
of the allegation. Petitioner stated that she didn't know if she made the statement. She also stated that she 
had not made the remark and that the allegation was a conspiracy among the three employees who asserted 
that she had. 

23. On April 9, 1991 , Dr. Janowsky and Ms. Morter spoke with Petitioner and informed her that 
she was being suspended pending completion of the investigation. 

24. After the investigation was complete, a predismissal conference was conducted on April 1 1, 
1991, at which Ms. Morter, Collin Rustin, the Human Relations Officer, and Malinda Marsh were present. 

25. Petitioner denied making the remark and said that Bill Richardson from Computer Services, 
was "best friends" with the fired employee. 

26. Mr. Richardson and Mr. Gray testified, and it is found as fact, that they did not know the 
fired employee personally. 



1450 7:14 NORTH CAROLINA REGISTER October 15, 1992 



CONTESTED CASE DECISIONS 



27. After the predismissal conference, the decision was made to terminate the Petitioner's 
employment. 

28. Ms. Marsh and Ms. Morter drafted the April 11, 1991 Dismissal letter which stated: 

"Based on our investigation and our pre-dismissal meeting, which was held 
today, regarding your alleged violation of University and State regulations 
on racial slurs and epitaphs (sic), our investigation gives us reason to believe 
these actions did occur. You are, therefore, relieved of your duties as an 
employee in the Department of Psychiatry effective Friday, April 11, 1991 . 
You have the right to appeal this decision." 

29. Mr. Rustin reviewed the dismissal letter and approved it. 

30. Petitioner appealed this dismissal through the internal grievance procedure and at Step III the 
Grievance Panel concluded that the dismissal letter of April 1 1, 1991, did not indicate the Petitioner's appeal 
rights, did not provide notice to the Petitioner allowing her five working days from the date of receipt of the 
letter to respond to the proposed dismissal, and did not inform her that the dismissal would become effective 
on the date specified in the letter in the absence of any response. 

31. Petitioner was not represented by counsel during the course of this agency-level grievance. 

32. Chancellor Paul Hardin reviewed the findings of the Grievance Panel and decided that he 
would accept in part the Panel's recommendation and reject it in part. 

33. Chancellor Hardin agreed with the Panel's findings that the April 1991 Dismissal letter was 
defective in failing to indicate appeal rights, failing to provide notice of five days to respond, and failing to 
provide notice that the discharge would become effective on a date specific. 

34. Chancellor Hardin did not adopt the findings that the letter was defective because it did not 
have prior approval by Employee Relations and it did not list the specific reasons in numerical order. 

35. Chancellor Hardin noted that this dismissal occurred during a time when an administrative 
reorganization was occurring and the Employee Relations functions of the University were being merged with 
the Human Resources Division. He also noted that there was only a single incident at issue and failing to 
number a single issue was not a defect. 

36. On December 3, 1991, after the Step III Grievance Panel report. Chancellor Hardin wrote 
Petitioner informing her of this decision. 

37. Chancellor Hardin, in that letter, informed Petitioner that he adopted the recommendation that 
Petitioner be reinstated with back pay and further stated that "Thereafter the Department may elect upon 
reviewing Ms. Bragg's case again to retain her or to initiate steps to discharge her again. If they do, she may 
of course appeal the discharge." 

38. Consequently, effective December 10, 1991, Respondent reinstated the Petitioner to her 
former position with full back pay. 

39. Simultaneously with the notice of reinstatement. Respondent invited Petitioner to attend a 
second predismissal conference on December 10, 1991, with her supervisors, Mr. Alan Reberg, who had 
become the Business Manager of the Psychiatry Department in September of 1991, and Dr. Janowsky. 

40. On December 10, 1991, the Respondent held another predismissal conference and the 
Petitioner was given another opportunity to respond to the charge against her. Petitioner categorically denied 
making the remark. 



7:14 NORTH CAROLINA REGISTER October 15, 1992 1451 



CONTESTED CASE DECISIONS 



41. After this second predismissal conference, the Respondent concluded that the Petitioner had 
made a derogatory racial statement in the presence of at least three other employees. Consequently, the 
Respondent informed Petitioner she was being dismissed for personal misconduct, effective December 18, 
1991. 

42. N.C. Gen. Stat. 126-35 provides that no permanent State employee shall be discharged 
without first being furnished with a statement in writing setting forth in numerical order the specific acts or 
omissions that are the reasons for the disciplinary action and the employees' appeal rights. 

43. 25 NCAC IB .0421(b) provides that the State Personnel Commission (SPC) may award full 
or partial back pay regardless of whether reinstatement is ordered. 

44. 25 NCAC IB .0414 provides, in pertinent part, that attorney's fees may be awarded where 
the grievant has been awarded back pay from a dismissal. 

45. 25 NCAC IB .0431 provides in pertinent part that the SPC shall order reinstatement from 
dismissal "only upon a finding of lack of substantive just cause." 

46. 25 NCAC IB .0432 provides that failure to give written notice of appeal rights is deemed a 
procedural violation and its sole remedy is an extension of time within which to file an appeal. 

47. 25 NCAC IB .0432 further provides that failure to give specific reasons is a procedural 
violation and the SPC may award back pay, attorney's fees or both for such service of time as the Commission 
determines appropriate. 

48. 25 NCAC U .0503 provides in pertinent part that departmental procedures may vary to 
provide greater safeguards for employees or to reflect the structure and need of the agency. 

49. SPAG 37. 2. d. provides that: 

The University will set aside any discharge... without respect to its merits - 
when such action is taken without the Item 2C approval and hearing process. 

50. SPAG 37. 2. c provides: 

c. Discharge or Disciplinary Suspension Without Pay can be effected 

only after advance approval by the Assistant Personnel Director - Employee 
Relations or the Employee Relations Officer (or, in their absences, the 
University Personnel Director). This process includes a Pre-Discharge or 
Pre-Suspension Hearing as outlined in Attachment 1, Item 4c or 5c 
respectively. (Item 5c relates to suspension without pay and is not pertinent 
to the matter at hand). 

51. SPAG 37. Attachment 1. Item 4c, provides: 

c. If the Employee Relations representative and the operating 

department representative agree that it is appropriate to propose discharge, 
these parties then meet with the employee in a Pre-Discharge Hearing. In 
this, the employee is notified of the specific actions or omissions that are the 
reasons for the proposed discharge and is given the opportunity to respond. 

Based upon the above Findings of Fact, the undersigned makes the following: 

CONCLUSIONS OF LAW 



1452 7:14 NORTH CAROLINA REGISTER October 15, 1992 



( 



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CONTESTED CASE DECISIONS 



1 . It is concluded that the evidence is sufficient to prove that Petitioner made the statement at 
issue during the meeting in Ms. Collier's office and that that statement constitutes personal misconduct. 

2. It is concluded that Respondent had just cause to dismiss Petitioner for personal misconduct. 

3. It is concluded that the April 1991 dismissal letter was procedurally defective in that it did 
not state with specificity the acts or omissions for which Petitioner was being dismissed and did not give 
Petitioner her appeal rights. 

4. The State Personnel rules provide that failure to give appeal rights is a procedural violation 
whose remedy is an extension of time within which to file an appeal. Since Petitioner appealed the April 1991 
dismissal and exhausted all steps of the grievance procedure, no further remedy for that error is appropriate 
or necessary. 

5. The State Personnel rules also provide that failure to give specific reasons for the adverse 
personnel action is a procedural violation and back pay, attorney's fees, or both may be awarded. Petitioner 
was not represented by counsel during the first internal grievance procedure and attorney's fees are, therefore, 
not at issue. Petitioner was awarded back pay at the third level of her grievance, which was the remedy to 
which she was entitled under these rules. 

6. SPAG 37. 2. d. provides that any discharge will be set aside without respect to its merits when 
that discharge is effected without the approval of the "Assistant Personnel Director-Employee Relations", the 
"Employee Relations Officer", or the "University Personnel Director." 

Although Collin Rustin. the Human Relations Officer , verbally approved the dismissal of 
April 1991 and was, in fact, present at the April 1991, predismissal conference, it appears that the grievance 
panel found this defective because the Human Relations Officer was not one of those named in SPAG 37. 2. d. 

Even though Chancellor Hardin did not adopt this finding because of the reorganization 
during the time of this grievance, he nevertheless awarded the remedy required for this violation, i.e. 
reinstatement. 

This reinstatement gave rise to the unusual situation of an employee being reinstated long 
enough to give the Respondent the opportunity to conduct a second predismissal conference and to issue a 
second letter of dismissal based upon the same violation. 

Although the reinstatement and second dismissal was clearly a problematic remedy. Petitioner 
was notified in her letter from Chancellor Hardin that she was being reinstated with the understanding that 
the Psychiatry Department could conduct a second predismissal conference immediately if they chose to do 
so. Petitioner, therefore, was not damaged by surprise or ambush when she returned to work. 

7. Based upon a thorough and deliberate consideration of all the facts and conclusions discussed 
above, it is the opinion of the undersigned that Petitioner has received all the remedies to which she is entitled 
and the second dismissal does not entitle her to the award of any additional back pay or attorney's fees. 

Based upon the above Conclusions of Law, the undersigned makes the following: 

RECOMMENDATION 

That the State Personnel Commission affirm the dismissal of the Petitioner for personal misconduct, 
the decision of the Respondent to award back pay from April to December of 1991, and that no further 
remedy be awarded to Petitioner. 

ORDER 



7:14 NORTH CAROLINA REGISTER October IS, 1992 1453 



CONTESTED CASE DECISIONS 



It is hereby ordered that the agency serve a copy of the final decision on the Office of Administrative 
Hearings, P.O. Drawer 27447, Raleigh, N.C. 2761 1-7447, in accordance with North Carolina General Statute 
l50B-36(b). 

NOTICE 

The agency making the final decision in this contested case is required to give each party an 
opportunity to file exceptions to this recommended decision and to present written arguments to those in the 
agency who will make the final decision. G.S. 150B-36(a). 

The agency is required by G.S. 150B-36(b) to serve a copy of the final decision on all parties and to 
furnish a copy to the parties' attorney of record and to the Office of Administrative Hearings . 

The agency that will make the final decision in this contested case is the North Carolina State 
Personnel Commission. 

This the 8th day of September, 1992. 



Dolores O. Nesnow 
Administrative Law Judge 



( 



( 



1454 7:14 NORTH CAROLINA REGISTER October 15, 1992 



CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLINA 



COUNTY OF CRAVEN 



IN THE OFFICE OF 
ADMINISTRATIVE HEARINGS 
91 EHR 0909 



OLDE TOWNE PARTNERSHIP AND 
TRYON REALTY COMPANY, 

Petitioners 



NORTH CAROLINA DEPARTMENT OF 
ENVIRONMENT, HEALTH AND 
NATURAL RESOURCES, DIVISION 
OF COASTAL MANAGEMENT, 

Respondent. 



RECOMMENDED DECISION 



The above matter was heard before Fred G. Morrison Jr., Senior Administrative Law Judge, on 
March 10th and 11th, 1992, and July 1, 1992, in New Bern, Craven County, North Carolina. The record 
was held opened until August 26th, 1992, to allow the parties to file proposed written final arguments, 
findings of fact, conclusions of law, briefs and any amendments to same. 

APPEARANCES 

The Petitioners, Olde Towne Partnership and Tryon Realty Company, were represented by Jimmie 
B. Hicks, Jr. The Respondent, North Carolina Department of Environment, Health and Natural Resources, 
Division of Coastal Management, was represented by David G. Heeter, Deputy General Counsel. 

ISSUE 

Whether the Respondent acted erroneously and in violation of the law and regulations of the State of 
North Carolina applicable thereto in failing to issue a CAMA Major Development/Dredge and Fill Permit to 
Petitioners. 

OPINION OF THE ADMINISTRATTVE LAW JUDGE 

Based on competent evidence admitted at the hearing, the Administrative Law Judge makes the 
following: 

FINDINGS OF FACT 

1. The Petitioners. Olde Towne Partnership and Tryon Realty Company, are a partnership and 
corporation, respectively, duly created and existing under the laws of the State of North Carolina in 
New Bern, Craven County, and own the subject matter property. 

2. The Respondent, Division of Coastal Management, a Division of the Department of Environment, 
Health, and Natural Resources, administers, by delegation from the Coastal Resources Commission, 
the provisions of the Coastal Area Management Act of 1974, N.C.G.S. 113A-100 et seci, and the 
regulations permitted thereunder by the Coastal Resources Commission. 

3. Petitioners' permit application was accepted on April 12, 1991, extended for review on June 26, 
1991. and was denied on September 6, 1991. 



7:14 NORTH CAROLINA REGISTER October 15, 1992 



1455 



CONTESTED CASE DECISIONS 



4. On September 6, 1991, Roger N. Schecter, pursuant to authority of the Secretary of the Department 
of Environment, Health, and Natural Resources, denied the Petitioners' request for permits under the 
Coastal Area Management Act and the State Dredge and Fill Law to excavate an access channel, thus 
opening a pond and providing a marina basin in an area heretofore not connected to the estuarine 
waters of the State. 

5. The Division of Environmental Management found that the state water quality standards would likely 
be violated should the pond be connected to the Olde Towne Lakes and the Trent River. 

6. The Division of Marine Fisheries objected to the permit based upon concerns that the fluctuating 
dissolved oxygen levels could become a lethal trap for anadronmous species. 

7. The Wildlife Resources Commission expressed concern about the wetlands impacts and found that the 
mitigation plan was not acceptable since the project did not avoid the impact. This Commission did 
not consider Petitioners' mitigation plan. 

8. The high-ground alternative suggested by the Wildlife Resources Commission was not available in 
this project. Said unavailability was due to lack of ownership, boating safety, and the fact that a 
navigation channel through this area created two separate right angles in the channel, in violation of 
State guidelines, regulations and statutes. Petitioners informed Respondent of the lack of ownership 
and violation of standards relating to the high-ground area in or about July, 1991. Thereafter, the 
WRC did not reconsider the Petitioners' permit applicant. 

9. The Petitioners' proposal is for the excavation of an access channel to an existing basin. The 
navigation/access channel would require the excavation of 12,500 square feet of wooded swamp 
wetlands. The Petitioners' permit application proposes a one-to-one mitigation. Furthermore, once 
dredged, the area of the navigation channel will change from a wooded swamp wetland to that of a 
open water wetland, and the impact will measure to be 0.36 acres. Within the basin approximately 
fifteen slips will be provided for off-water property owners within this subdivision of Olde Towne. 
Another three slips will be established west of Harbour Island Drive, where maintenance excavation 
and bulk heading is proposed. The proposed marina would be a multi-segment marina. Waters of 
the adjacent Trent River are classified as "SB-SW-NSW" by the North Carolina Division of 
Environmental Management. The Trent River is designated as joint waters. The proposal involves 
the excavation of a 300 feet long by 50 feet wide by 6 feet deep channel through a segment of a 
wooded swamp wetlands. This channel would displace approximately 4,500 cubic yards of fill 
material. The excavation will be done by hydraulic dredge with the slurry being pumped to a diked 
disposal area located on Lots 59, 107, and 108, as depicted in figure 8 of the Petitioners' permit 
application. This spoil area is expected to contain this material with sufficient settling area, as the 
water level will be controlled by flashboard riser, emptying into the existing basin. When this 
procedure is completed, operations will be shut down for the spoil to dewater and be removed to a 
secondary disposal area(s) in uplands. The average of one foot of material will be removed from the 
bottom across this basin in order to obtain uniform, tapering depths back to the Olde Towne canal. 
Another 250 square feet of 404-Type wetlands will be removed, along with a small area of uplands, 
in order to reduce nooks and crannies that may be a problem to water circulation. 

10. The site of the proposed marina basin is within estuarine water areas of environmental concern 

(AEC). 

1 1. Olde Towne Lakes and Trent River are navigable waters. 

12. The unconnected pond in its current state is of superior water quality, in terms of dissolved oxygen, 
than either the Olde Towne Lakes or Trent River. 

13. The waters of the Olde Towne Lakes and unconnected pond in their current states do not violate any 
water quality standards. The lone exception to this is the water quality standard of total dissolved 



1456 7:14 NORTH CAROLINA REGISTER October 15, 1992 



CONTESTED CASE DECISIONS 



gases (TDG). However, this violation of super-saturation exists in both the Olde Towne Lakes as 
well as the unconnected pond, and at the surface levels only. At the time it recommended denial of 
the permit. Respondent was unaware that this violation existed in both bodies. 

14. There are no lunar tides in the geographical area of this project. Wind tides, however, do exist. 
Generally, these tides are only of a few inches, but some wind tides have been known to cause 
elevations to change by at least three feet. Such an increase in elevation would cause mixing between 
the two bodies of water, and in fact mixing does occur. 

15. Petitioners' mitigation plan, in that it cannot avoid the impact, minimizes the impact and provides 
mitigation of impact. 

16. The use classification of the Olde Towne Lakes and unconnected pond in their current state and in 
their state if eventually connected would be "C-NSW." 

17. There have never been any known or recorded fish kills or algal blooms in the seventeen year history 
of the Olde Towne Lakes. 

18. The proposed marina will permit the docking of boats in this area for residents of the subdivision who 
do not have water-access. No services whatsoever will be provided at this marina, which will follow 
a "closed head" policy. 

19. In its current state, there is no circulation in the unopened pond. Connecting the unopened pond to 
the Olde Towne Lakes would increase circulation and flushing in the pond. 

20. Respondent reviewed Petitioners' application under the mistaken belief that a 401 certification was 
required. 

21. The proposed project is a water dependent use. 

22. No coastal wetlands will be involved in this project. 

23. Respondent ran a computer program to model potential impacts on water quality. The computer 
model run by Mr. Alan Klimeck of the DEM was extremely dependent on lunar tidal action. There 
is no lunar tidal action in this geographical area; therefore, the computer program consistently 
predicted lower dissolved oxygen levels in the basin than what were actually read during sampling, 
although no sampling ever indicated a violation of any standard. 

24. During the processing of the permit application, several personnel of the Respondent, at least 
partially, based their decision on the alleged similarity of this project to that of a separate project in 
1986. However, this project greatly differs from the 1986 project in that the excavation of 404-type 
wetlands has been reduced by 92%, filling of 404-type wetlands in this application are not proposed, 
the excavated impacts to 404-type wetlands are being mitigated at a one-to-one ratio, this project is 
water dependent, and the ambient water quality data indicates the water quality of the unconnected 
pond in its current condition is at an acceptable level, and is expected to improve upon opening the 
pond. 

25. Respondent's witness, Preston Pate, indicated that on an average, CAMA Permit evaluations require 
eleven days in addition to the original 75 days allowed under the statute. Further, Respondent 
extended the time for its review of this project for 75 additional days without stating or showing 
exceptional circumstances. In an extension letter sent to Petitioners on June 26, 1991, Respondent 
used general or form language. Also, DEM had been aware of the matters in question since 
considering the 1986 application and probably even since a prior permit in the late 1970s. 

26. In their petition requesting a contested case hearing. Petitioners allege that the Respondent deprived 



7:14 NORTH CAROLINA REGISTER October 15, 1992 1457 



CONTESTED CASE DECISIONS 



them of property and substantially prejudiced their rights and in so doing acted erroneously, failed 
to use proper procedure, acted arbitrarily and capriciously, and failed to act as required by law or 
rule. 

Based on the foregoing Findings of Fact, the Administrative Law Judge makes the following: 

CONCLUSIONS OF LAW 

1. Respondent erroneously failed to consider the Petitioners' mitigation plan upon the erroneous belief 
that the Petitioners could avoid the impact. 

2. The use classification of the unconnected pond and Olde Towne Lakes will not change upon 
connection, and therefore there is no violation of the state antidegredation policy. 

3. Prior to this hearing. Respondent failed to reconsider relevant portions of the Petitioners' permit 
application once it was revealed that some critical underlying bases for recommendation of denial was 
incorrect and in error. Such failure to reevaluate said permit was unwarranted and erroneous. 
Further, Respondent based its recommendation of denial on other erroneous and/or irrelevant 
conclusions. 

4. The connection of the unconnected pond with the Olde Towne Lakes and Trent River will not cause 
adverse water circulation problems, nor violate any water quality standards. 

5. Respondent did not show any exceptional circumstances requiring said permit application to be 
extended past the initial 75 days, as required by G.S. 113A-122(c). 

6. Connecting the unconnected pond to the Trent River and Olde Town Lakes will make the unconnected 
pond a public water and open it to the full public use, thereby increasing the public trust waters of 
the State. 

7. The Respondent's denial of the permit application is an unreasonable and illegal interference with the 
rights of the Petitioners in violation of the laws and regulations of the State of North Carolina. 

8. Respondent has not carried its burden of persuading the undersigned with substantial evidence that 
it acted properly in refusing to issue Petitioners' permit. I have not been convinced that Petitioners' 
proposed activity will violate rules, regulations or laws of the State of North Carolina. 

Based on the foregoing Findings of Fact and Conclusions of Law, the Administrative Law Judge 
makes the following: 

RECOMMENDED DECISION 

That the CAMA Major Development/Dredge and Fill Permit be issued to the Petitioner. 

ORDER 

It is hereby ordered that the agency serve a copy of the final decision on the Office of Administrative 
Hearings, P.O. Drawer 27447, Raleigh, N.C. 2761 1-7447, in accordance with North Carolina General Statute 
150B-36(b). 

NOTICE 

The agency making the final decision in this contested case is required to give each party an 
opportunity to file exceptions to this recommended decision and to present written arguments to those in the 
agency who will make the final decision. G.S. 150B-36(a). 



1458 7:14 NORTH CAROLINA REGISTER October IS, 1992 



CONTESTED CASE DECISIONS 



> 



The agency is required by G.S. 150B-36(b) to serve a copy of the final decision on all parties and to 
furnish a copy to the parties' attorney of record and to the Office of Administrative Hearings. 

The agency that will make the final decision in this contested case is the North Carolina Coastal 
Resources Commission. 



This the 16th day of September, 1992. 



Fred G. Morrison Jr. 

Senior Administrative Law Judge 



7:14 NORTH CAROLINA REGISTER October 15, 1992 1459 



NORTH CAROLINA ADMINISTRATIVE CODE CLASSIFICATION SYSTEM 



1 he North Carolina Administrative Code (NCAC) has four major subdivisions of rules. Two of these, 
titles and chapters, are mandatory. The major subdivision of the NCAC is the title. Each major 
department in the North Carolina executive branch of government has been assigned a title number. 
Titles are fitrther broken down into chapters which shall be numerical in order. The other two, 
subchapters and sections are optional subdivisions to be used by agencies when appropriate. 



TITLE/MAJOR DIVISIONS OF THE NORTH CAROLINA ADMINISTRATIVE CODE 
TITLE DEPARTMENT LICENSING BOARDS CHAPTER 



1 


Administration 


Architecture 


2 


2 


Agriculture 


Auctioneers 


4 


3 


Auditor 


Barber Examiners 


6 


4 


Economic & Community Development 


Certified Public Accountant Examiners 


8 


5 


Correction 


Chiropractic Examiners 


10 


6 


Council of State 


General Contractors 


12 


7 


Cultural Resources 


Cosmetic Art Examiners 


14 


8 


Elections 


Dental Examiners 


16 


9 


Governor 


Dietetics/Nutrition 


17 


10 


Human Resources 


Electrical Contractors 


18 


11 


Insurance 


Electrolysis 


19 


12 


Justice 


Foresters 


20 


13 


Labor 


Geologists 


21 


14A 


Crime Control & Public Safety 


Hearing Aid Dealers and Fitters 


22 


15A 


Environment, Health, and Natural 


Landscape Architects 


26 




Resources 


Landscape Contractors 


28 


16 


Public Education 


Marital and Family Therapy 


31 


17 


Revenue 


Medical Examiners 


32 


18 


Secretary of State 


Midwifery Joint Committee 


33 


19A 


Transportation 


Mortuary Science 


34 


20 


Treasurer 


Nursing 


36 


21 


Occupational Licensing Boards 


Nursing Home Administrators 


37 


22 


Administrative Procedures 


Occupational Therapists 


38 


23 


Community Colleges 


Opticians 


40 


24 


Independent Agencies 


Optometry 


42 


25 


State Personnel 


Osteopathic Examination & Reg. (Repealed) 


44 


26 


Administrative Hearings 


Pharmacy 


46 






Physical Therapy Examiners 


48 






Plumbing, Heating & Fire Sprinkler Contractors 


50 






Podiatry Examiners 


52 






Practicing Counselors 


53 






Practicing Psychologists 


54 






Professional Engineers & Land Surveyors 


56 






Real Estate Commission 


58 






Refrigeration Examiners 


60 






Sanitarian Examiners 


62 






Social Work 


63 



Speech & Language Pathologists & Audiologists 64 
Veterinary Medical Board 66 



Note: Title 21 contains the chapters of the various occupational licensing boards. 



1460 



7:14 NORTH CAROLINA REGISTER October 15, 1992 



CUMULATIVE INDEX 



CUMULATIVE INDEX 

(April 1992 - March 1993) 



Pages 



Issue 



1 - 105 1 - April 

106 - 173 2 - April 

174 - 331 3 - May 

332 - 400 4 - May 

401 - 490 5 - June 

491 - 625 6 - June 

626 - 790 7 - July 

791 - 902 8 - July 

903 - 965 9 - August 

966 - 1086 10 - August 

1087 - 1154 11 - September 

1 155 - 1253 12 - September 

1254 - 1350 13 - October 

1351 - 1463 14 - October 

ADMINISTRATION 

Auxiliary Services, 4 

Motor Fleet Management Division, 794 

AGRICULTURE 

Gasoline and Oil Inspection Board, 336 

Pesticide Board, 1276 

Plant Industry, 904 

Structural Pest Control Committee, 332 

Veterinary Division, 342 

CULTURAL RESOURCES 

U.S.S. Battleship Commission, 911 

ECONOMIC AND COMMUNITY DEVELOPMENT 

Banking Commission, 629 
Community Assistance, 909, 968 
Departmental Rules, 801 

ENVIRONMENT, HEALTH, AND NATURAL RESOURCES 

Adult Health, 1199 

Coastal Management, 211, 655, 1098 

Departmental Rules, 826 

Environmental Health, 223 

Environmental Management, 190, 416, 500, 644, 830, 1013 

Governor's Waste Management Board, 564, 920, 1197 

Health: Epidemiology, 140, 1212 

Health: Personal Health, 1217 

Health Services. 52, 659, 1174 

Marine Fisheries, 530 

NPDES Permits Notices. 1, 107 

Radiation Protection, 136 

Sedimentation Control, 920 



7:14 NORTH CAROLINA REGISTER October IS, 1992 



1461 



CUMULATIVE INDEX 



Vital Records, 565 

Wildlife Resources Commission, 28. 133. 408. 449. 551. 921, 1299, 1414 

Wildlife Resources Commission Proclamation. 176 

FINAL DECISION LETTERS 

Voting Rights Act. 106. 174. 406. 493. 628. 793. 966. 1090. 1275 

GENERAL STATUTES 

Chapter 150B. 1254 

GOVERNOR/LT. GOVERNOR 

Executive Orders. 401. 491. 626. 791, 903. 1087. 1155, 1351 

HUMAN RESOURCES 

Aging, Division of, 121. 346 

Day Care Rules. 123 

Economic Opportunity. 5 

Facility Services. 111. 177. 496. 634. 980. 1352 

Medical Assistance. 4. 415. 496. 816. 989. 1156, 1295. 1391 

Mental Health. Developmental Disabilities and Substance Abuse Services. 111. 297. 409. 809, 1092, 1276 

Social Services Commission, 183, 911 

INDEPENDENT AGENCIES 

Housing Finance Agency. 450. 576. 928. 1219 

LNSURANCE 

Actuarial Services Division. 1411 

Agent Services Division. 1410 

Consumer Services Division. 125. 1157 

Departmental Rules. 7. 1095. 1405 

Engineering and Building Codes. 19. 643 

Financial Evaluation Division. 1162 

Fire and Rescue Services Division, 17, 1406 

Hearings Division. 124. 1096 

Life and Health Division. 22. 347, 1167 

Property and Casualty Division. 20 

Seniors" Health Insurance Information Program. 132 

JUSTICE 

Alarm Systems Licensing Board. 27. 189. 643, 919. 1414 

Criminal Information. 1097 

General Statutes Commission. 353 

Private Protective Services. 918 

Sheriffs Education and Training. 990 

State Bureau of Investigation. 188. 499. 1413 

LICENSLNG BOARDS 

Architecture. 1111 

Certified Public Accountant Examiners. 355 

Chiropractic Examiners. 1416 

Cosmetic Art Examiners. 360. 922 

Dietetics/Nutrition. 923 

Electrolysis Examiners. 69. 700 

Medical Examiners. 1304. 1417 

Nursina. Board of. 232. 700 



1462 7:14 NORTH CAROLINA REGISTER October 15, 1992 



I 



( 



CUMULATIVE INDEX 



Pharmacy, Board of, 1418 

Professional Engineers and Land Surveyors, 566 

Speech and Language and Pathologists and Audiologists, 705 

LIST OF RULES CODIFIED 

List of Rules Codified, 72, 362, 452, 584 

PUBLIC EDUCATION 

Departmental Rules, 1 108 
Elementary and Secondary, 852, 1 108 

REVENUE 

License and Excise Tax, 712 
Motor Fuels Tax, 361 

STATE PERSONNEL 

Office of State Personnel, 237, 705, 1113, 1419 

TAX REVIEW BOARD 

Orders of Tax Review, 494 

TRANSPORTATION 

Highways, Division of, 228, 856, 1062, 1 1 10 
Motor Vehicles, Division of, 68, 142 



7:14 NORTH CAROLINA REGISTER October 15, 1992 1463 



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